S had leased a carriage to B for five years and agreed to keep it in repair, it was held that B could not be compelled to accept C as a substitute for S in receiving the rent and making the repairs because B "may have been induced to enter into this contract by reason of the personal confidence which he reposed in Sharpe. . . The latter, therefore, having said it was impossible for him to perform the contract, the defendant had a right to object to its being performed by any other person, and to say that he contracted with Sharpe alone, and not with any other person. ''14 Of course the other party may consent to the assignment of a contractual liability, but in such case a new contract is created.

If a party has contracted to do something which requires no special skill and has not been selected because of possessing any peculiar personal qualifications, he may procure the work to be done by another. He is still liable, however, if the work is not done in accordance with the contract, so there is no true assignment of liability, and the person who does the work acquires no right against the one for whom the work is done by his mere acceptance of it.15

§ 105. Assignment of Rights. At common law the rights and benefits arising out of a contract technically could not be assigned except in cases governed by the customs of the law merchant. Even the stipulation of the parties in the contract to that effect could not make it assignble so that the assignee could maintain a suit in his own name. Common-law courts recognized the equitable interest of the assignee, however, and permitted him to sue in the name of his assignor, to whom he was required to give security against costs.16 At common law the assignee could only sue in his own name when he had procured from the promisor a substituted agreement, but this rule has been changed in most States so as now to permit the assignee of an assignable contract to sue thereon in his

14 Robson v. Drummond, 2 Barn. & Adol. 303, 307, 109 Eng. Rep. Re. 1156. 15 Rochester Lantern Co. v. Press Co., 135 N. Y. 209, 31 N. E. 1018, 1021. 16 Webb v. Steele, 13 N. H. 230.

own name in the same manner as the assignor might have done before the assignment.

What Rights Are Not Assignable. Rights, or choses in action, as they are commonly called, which are coupled with liabilities under an executory contract for personal services, or under contracts involving a personal relation or confidence cannot be assigned. Thus, an agreement by A to paint B's portrait could not be assigned by A because of B's confidence in A's peculiar taste and ability as a portrait painter. But A might assign his right to the money due for painting the portrait. So also it has been held that a contract by a publisher with an author to publish a work is not assignable by the publisher without the author's consent, because of the personal trust placed in the publisher by the author.17 In a Missouri case, 18 it was held that an agreement between M and B & Co by which M would furnish B & Co all the meat they would need at their hotel during a period of one year at certain prices, payment to be made at the end of each month, could not be assigned by B & Co to L so that I could demand performance. The liability of B & Co to pay clearly made their rights thereunder unassignable.

§ 106. Notice of Assignment. Although an assignment is binding between the parties to it from the moment it is made, it does not bind the one liable on the original contract until he has received notice. He has a right to know to whom his liability is due and if he pays the original obligee without notice of the assignment, he will be protected as against the assignee. And as between successive assignees of the same right that one is generally held to be entitled to priority who first gives notice to the debtor or obligor even though his assignment be subsequent in time to another.19

§ 107. Form of Assignment and Notice. No particular form of assignment is necessary unless required by statute,

17 Stevens v. Benning, 1 Kay & J., 168, 69 Eng. Rep. Re. 414.

18 Lansden v. McCarthy, 45 Mo. 106.

19 Judson v. Corcoran, 17 How. 612, 615.

nor is it necessary that the assignment be in writing. The form of notice of assignment is immaterial provided it is such as to inform the debtor or obligor of the assignment.

§ 108. Assignee Takes Subject to Equities. An assignee of a chose in action can acquire no more rights thereunder than his assignor possessed. A may assign to B his claim against C for $100, but B will take such claim subject to the right which C had to set-off an existing debt of A to him, whether A informed B of such debt or not. So also if the debt has been partly paid or if C has a defense on the ground of fraud or misrepresentation. This is because A's right was subject to these counterclaims or defenses before its assignment and the assignment could not improve or change it.

§ 109. Assignability Distinguished from Negotiability. The rule that the assignee takes subject to equities does not apply in that class of contracts known as negotiable instruments. They are called negotiable instruments because they are transferred by negotiation as distinguished from assignment. In this classification are checks, promissory notes, bills of exchange, certificates of deposit, and some kinds of warehouse receipts, bills of lading, and bonds. The effect of negotiation is (1) to transfer the title by indorsement if the instrument is payable to some particular person or by delivery if payable to bearer or indorsed in blank, so that the holder may sue in his own name, and (2) to free the contract from all equities between the original parties if the negotiation be for value before maturity to one who has no notice of such equities.20

§ 110. Assignment by Operation of Law. Contractual rights or liabilities may pass under rules of law as well as by voluntary acts of the parties. At common law the husband possessed the right to reduce all of his wife's choses in action to possession and sue jointly with her for what was due on her contracts. He was also liable to pay all of his wife's debts existing at the time of her marriage. These rules of the common law have been greatly changed or vir20 See article on Bills, Notes, and Checks.

tually abolished in all of the United States so that marriage has very little, if any, effect upon the existing contractual rights and liabilities of either party.

The death of a party operates to vest all of his contractual rights and obligations in his executors or administrators, who may bring suit to enforce his rights and are liable to be sued for the contractual liabilities of the deceased. The personal representative simply stands in the shoes of the deceased, turning over to the estate all that is received and being liable to meet the obligations of the deceased only from the funds of the estate. The only contracts of a deceased person which do not pass are those calling for the personal services or skill of the deceased and contracts, the breach of which would have caused merely a personal loss to the deceased. Thus, a contract to paint a portrait would terminate with the death of the artist so that no claim could survive against his executor. An executor cannot recover for breach of a promise to marry his testatrix even though the breach occurred during her lifetime, for the breach was not a financial loss to the estate.21

Bankruptcy operates to assign all of the rights and liabilities of the bankrupt to his trustee in bankruptcy.22

§ 111. Several, Joint, and Joint and Several Contracts. Where there is more than one person on the same side of a contract, either as promisees or as promisors, their respective rights or obligations are either several, joint, or joint and several.

Several Rights and Obligations. Where the contract is several, each person is liable to perform severally, for it is as though each had made a separate and distinct promise. Whether a promise is several is, as in the case of joint contracts, a question of the intention of the parties as determined by the agreement and, if necessary, the surrounding circumstances. Subscription papers furnish an apt illustration of several agreements, for it is clear that it is not

21 Chamberlain v. Williamson, 2 Maule & S. 408, 105 Eng. Rep. Re. 433. 22 The effect of transfers of land upon obligations connected therewith, is treated under the subject of Real Property.

the intention that one should pay more than his individual subscription. Since each promise is separate, each promisor must be sued separately and nothing but a satisfaction of the whole obligation will prevent suits against the others. The executor or administrator of a deceased several promisor acquires his liability.

Joint Rights and Obligations. Where several persons have entered into a joint obligation, there is only one promise upon which each is jointly with all the others but not separately liable. Whether an obligation is joint or several is a question of construction, depending on the terms of the contract, and, if necessary, the surrounding circumstances. Partnership debts are a familiar illustration of joint promises. If less than all within the jurisdiction of the court are joined as defendants in a suit on their obligation, those sued may successfully defend on the ground of the non-joinder of the other joint obligors. If they do not raise this point and judgment is obtained against them, this is a discharge of the others.23 Upon the death of one of the obligors, the liability devolves upon the survivors and thus ultimately upon the last surviving promisor. The executor or administrator of a deceased joint promisor cannot be sued with the others, but the estate may be charged in equity. Courts of equity for equitable reasons frequently treated joint contracts as both joint and several. Whether one promisor, whether joint or several, who has paid more than his share of the debt, has any right to recover from the others their pro rata shares depends upon their agreement inter sese. A voluntary release of one joint promisor operates to release all the others but this is not true of a release by operation of law.

Joint promisees must all join in a suit on the joint right of action and if one of them dies the survivors alone may sue, since all legal rights under the contract survive to them. The executor or administrator of the deceased joint promisee may not sue with the others or singly.

23 Mason v. Eldred, 6 Wall. 231, 238, 18 L. ed. 783.