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Rights founded on personal

cannot be

assignee in any better position than his assignor. Hence the rule that the assignee is bound by all the equities affecting what is assigned.

Hence also the “rule of general jurisprudence, not confined to choses in action .. that if a person enters into a contract, and without notice of any assignment fulfils it to the person with whom he made the contract, he is discharged from his obligation" (a), and the various consequences of its application in the equitable doctrines as to priority being gained by notice.

Again, rights arising out of a contract cannot be transferred if they are coupled with liabilities, or if they involve confidence a relation of personal confidence such that the party whose assigned. agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided. Thus one partner cannot transfer his share so as to force a new partner on the other members of the firm without their consent: all he can give to an assignee is a right to receive what may be due to the assignor on the balance of the partnership accounts, and if the partnership is at will, the assignment dissolves it; if not, the other partners may treat it as a ground for dissolution. And a sub-partner has no rights against the principal firm.

In the same way a contract of apprenticeship is prima facie a strictly personal contract with the master; this construction may be excluded however by the intention of the parties, e.g. if the master's executors are expressly named (b), or by custom (c).

So if an agent appoints a sub-agent without authority, the sub-agent so appointed is not the agent of the principal and cannot be an accounting party to him (d). A peculiar case involving a similar question was Stevens v. Benning (e).

(a) Per Willes, J. De Nicholls v.
Saunders, L. R. 5 C. P. at p. 594.
(b) Cooper v. Simmons, 7 H. & N.
707, 31 L. J. M. C. 138.

(c) Bac. Abr. Master and Ser-
vant, E.

(d) Cartwright v. Hateley, 1 Ves. jun. 292. Cp. Indian Contract Act, 1872, s. 193.

(e) 1 K. & J. 168, 6 D. M. G. 223; followed in Hole v. Bradbury, 12 Ch. D. 886.

It was there held that a publisher's contract with an author was not assignable without the author's consent. The plaintiffs, who sought to restrain the publication of a new edition of a book, claimed under instruments of which the author knew nothing, and which purported to assign to them all the copyrights, &c., therein mentioned (including the copyright of the book in question) and all the agreements with authors, &c., in which the assignors, with whose firm the author had contracted, were interested. It was decided (1) that the instrument relied on did not operate as an assignment of the copyright, because on the true construction of the original agreement with the publishers the author had not parted with it: (2) that it did not operate as an assignment of the contract, because it was a personal contract, and it could not be indifferent to the author into whose hands his interests under such an

engagement were entrusted. In the plaintiffs, however trustworthy, the author had not agreed or intended to place confidence: with them, however respectable, he had not intended to associate himself (a).

ties in law

The law of agency, which we have already had occasion Peculiarito consider (b), presents much more important and peculiar of agency. exceptions. Here again we find that the limitations under which those exceptions are admitted show the influence of the general rule; thus a party dealing with an agent for an undisclosed principal is entitled as against the principal to the benefit of any defence he could have used against the agent.

C. Error as to the subject-matter.

There may be fundamental error concerning:

A. The specific thing supposed to be the subject of the transaction.

B. The kind or quantity by which the thing is described;

(a) See 1 K. & J. at p. 174, 6 D. M. G. at p. 229.

(b) Ch. II., p. 107 above.

Error as to

subjectmatter.

&c., Mail

or some quality which is a material part of the description of the thing, though the thing be specifically ascertained.

The question however is in substance always the same, and may be put in this form: It is admitted that the party intended to contract in this way for something; but is this thing that for which he intended to contract? The rule governing this whole class of cases is fully explained in the judgment of the Court of Queen's Bench in Kennedy the case of Kennedy v. Panama, &c., Mail Company (a). v. Panama, There were cross actions, the one to recover instalments Company. paid on shares in the company as money had and received, the other for a call on the same shares. The contention on behalf of the shareholder was "that the effect of the prospectus was to warrant to the intended shareholders that there really was such a contract as is there represented (b), and not merely to represent that the company bona fide believed it; and that the difference in substance between shares in a company with such a contract and shares in a company whose supposed contract was not binding was a difference in substance in the nature of the thing; and that the shareholder was entitled to return the shares as soon as he discovered this, quite independently of fraud, on the ground that he had applied for one thing and got another" (c).

The Court allowed it to be good law that if the shares applied for were really different in substance from those allotted, this contention would be right. But it is an important part of the doctrine, both in our own law and in the civil law (d), that the difference in substance must be complete. In the case of fraud, a fraudulent representation of any fact material to the contract gives a right of

(a) L. R. 2 Q. B. 580.

(b) A contract with the postmaster-general of New Zealand on behalf of the Government, which turned out to be beyond his authority.

(c) Per Cur. at p. 586.

(d) P. 588, citing D. 18. 1. de cont. empt. 9, 10, 11. By a clerical error the fragment of Ulpian (h. t. 1. 14) "Si aes pro auro veneat, non valet," &c., is ascribed to Paulus in the report.

rescission; but the misapprehension which prevents a valid contract from being formed must go to the root of the matter. In this case the misapprehension was not such as to make the shares obtained substantially different from the shares described in the prospectus and applied for on the faith of that description (a). It was at most like the purchase of a chattel with a collateral warranty, where a breach of the warranty gives an independent right of action, but in the absence of fraud is no ground for rescinding the contract (b).

In the particular case of taking shares in a company the contract is not in any case void, but only voidable at the option of the shareholder if exercised within a reasonable time this, although in strictness an anomaly, is required for the protection of the company's creditors, who are entitled to rely on the register of shareholders (c).

We also reserve for the present the question how the legal result is affected when the error is due to a representation made by the other party. The exposition of the general principle, however, is not the less valuable: and we now proceed to give instances of its application in the branches already mentioned.

divisions:

Ambigu

ous name.

a. Error as to the specific thing (in corpore). The Submost striking recent case of this kind is Raffles V. Error in Wichelhaus (d). The declaration averred an agreement corpore. for the sale by the plaintiff to the defendants of certain goods, to wit, 125 bales of Surat cotton, to arrive ex "Peerless" from Bombay, and arrival of the goods by the said ship: Breach, non-acceptance. Plea, that the defendants meant a ship called the "Peerless" which sailed

(a) So, where new stock of a company is issued and purchased on the supposition that it will have a preference which in fact the company had no power to give to it, this does not amount to a generic difference between the thing contracted for and the thing purchased:

Eaglesfield v. Marquis of London-
derry, 3 Ch. D. 693.

(b) Street v. Blay, 2 B. & Ad.

456.

(c) See cases cited p. 447, infra.
(d) 2 H. & C. 906; 33 L. J. Ex.
160.

from Bombay in October, and that the plaintiff offered to deliver, not any cotton which arrived by that ship, but cotton which arrived by a different ship also called the "Peerless" and which sailed from Bombay in December. The plea was held good, for "The defendant only bought that cotton which was to arrive by a particular ship;" and to hold that he bought cotton to arrive in any ship of that name would have been "imposing on the defendant a contract different from that which he entered into” (a).

With this may be compared Phillips v. Bistolli (b). The principal question was whether there had been a sufficient acceptance within the Statute of Frauds of certain goods bought at an auction: the decision was that under the circumstances this ought to have been left as a question of fact to the jury, and that there must be a new trial. The jury had found that there was no mistake (no other question having been left to them): and it seems to have been admitted that if there had been an innocent mistake on the part of the buyer as to the lot being sold or the price he was agreeing to give, there would even independently of the Statute have been no contract (c). In Malins v. Freeman (d) specific performance was refused against a purchaser who had bid for and bought a lot different from that he intended to buy: but the defendant had acted with considerable negligence, and the question was left open whether there was not a valid contract on which damages might be recovered at law. The case of Calverley v. Williams (e) shows clearly however that the same prinParcels in ciple has been fully recognized by courts of equity. The mistake. description of an estate sold by auction included a piece which appeared not to have been in the contemplation of

(a) Per Pollock, C. B. and Martin, B. 2 H. & C. at p. 907.

(b) 2 B. & C. 511.

(c) The question whether there is an implied warranty of title on a sale of chattels (Eichholz v. Bannister, 17 C. B. N. S. 708, 34 L. J. C. P. 105; see Benjamin on Sale, 518) is not without its analogy to this

class of cases. Cp. the judgment of
Willes, J. (dissenting) in Bagueley v.
Hawley, L. R. 2 C. P. 625, 629,
that "the thing which the defen-
dant sold was a boiler and not a
lawsuit."

(d) 2 Kee. 25.
(e) 1 Ves. jun. 210.

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