The exceptions to this rule are apparent rather than real. A person may assign the liabilities imposed upon him by a contract which he has made if the other party to the contract consents. This, however, is, in effect, a new contract. It is a rescission by agreement of the old contract, and the substitution of a new one, in which the same acts are to be performed by different parties.
Another apparent exception is in this, namely, that if a person undertakes to do work for another which requires no special skill, and he has not been selected for the work with reference to any personal qualifications, he may have the work done by some equally competent third person. This, however, is not an assignment of his liabilities, for he does not cease to be liable if the work is not done in accordance with the contract.46
The third apparent exception is where an interest in land is transferred. In such case, liabilities attaching to the enjoyment of the interest pass with it. This will be discussed presently.
195. AT COMMON LAW. Rights arising out of a contract cannot be assigned at common law except -
EXCEPTIONS - (a) By an agreement between the original parties and the intended assignee, which is subject to all the rules for the formation of a valid contract.
(b) By the rules of the law merchant in the case of negotiable instruments.
45 Robson v. Drumraond, 2 Barn. & Adol. 303. BOSTON ICE CO. v. POTTER, 123 Mass. 28, 25 Am. Rep. 9, Throckmorton Cas. Contracts, 305. Cf. British Waggon Co. v. Lea, 5 Q. B. Div. 149. And see Hand v. Evans Marble Co., 88 Md. 226, 40 Atl. 899; Atlantic & N. C. R. Co. v. Atlantic & N. C. Co., 147 N. C. 36S, 61 S. E. 185, 23 L. R. A. (N. S.) 223, 125 Am. St. Rep. 550, 15 Ann. Cas. 363, in the latter which it is said, per Hoke, J., in reference to Rob-son v. Drummond and BOSTON ICE CO. v. POTTER, supra: "Certainly, neither one of these cases can, it seems to us, be supported except on the theory that there were terms in the contract importing reliance on the personal skill, business standing or methods of the other contracting party." See, also, to the same effect, article by Prof. F. C. Woodward in 18 Harv. L. Rev. 23. See "Assignments," Dec. Dig. (Key-No.) §§ 18, 19; Cent. Dig. §§ 25-31.
46 British Waggon Co. v. Lea, 5 Q. B. Div. 149; Rochester Lantern Co. v. Press Co., 135 N. Y. 209, 31 N. E. 1018. See "Assignments," Deo. Dig. (Key-No.) §§ 18, 19; Cent. Dig. §§ 25-31.
(c) An assignment in equity is so far recognized at common law as to permit the assignee to sue thereon in the name of the assignor or his representatives.
196. IN EQUITY. A chose in action, or rights under a contract, may be assigned in equity whenever the contract is not for exclusively personal services, and does not involve personal credit, trust, and confidence. But -
CONDITIONS - (a) Notice is necessary to bind the debtor or person liable, (b) The assignee takes subject to all such defenses as would have prevailed against the assignor.
197. BY STATUTE. There are statutes in most states allowing the assignment of choses in action, and a suit at law by the assignee in his own name.