The duties under a contract are not assignable inter vivos in a true sense under any circumstances; that is, one who owes money or is bound to any performance whatever, cannot by any act of his own, or by any act in agreement with any other person, except his creditor, divest himself of liability and substitute another's liability.22 This is sufficiently obvious when attention is called to it, for otherwise obligors would find an easy practical way of escaping their obligations, and yet an apparent neglect to recognize the principle causes considerable confusion when assignment of bilateral obligations is in question. It is true that on the death of an obligor, the duty binds his personal representatives to the extent of the assets in their hands; 23 but the representatives by a legal fiction continue the person of the deceased; and as their liability is limited to the assets of the deceased, the fiction is justifiable because all his assets pass into their hands. Only an incomplete analogy, then, can be drawn between the transfer of duties on death and inter vivos,24 25though the analogy is closer between the rights which pass on the death of an obligee, and those which he can transfer while alive.26 One who is subject to a duty though he cannot escape his obligation may delegate performance of it provided the duty is of such character that performance by an agent will be substantially the same thing as performance by the obligor himself. The performance in such a case is indeed in legal contemplation rendered by the original obligor, who is still the party liable if the performance is in any respect incorrect. In considering whether the duty of an obligor can be performed by another, the same question arises when the obligor dies as when he attempts an assignment in his life time. Death discharges personal obligations because in their nature they are incapable of fulfillment by an executor.27 So under an attempted assignment inter vivos delegation of the performance of such obligations is ineffectual. Any obligation either of a master or servant where the work involves a personal relation, is of this character.28 And so it is where one contracts to give a home and support to a relative,29 or where work of any kind for which a contractor is bound is of a sort requiring peculiar personal skill,30 or where professional services are contracted for.31 Nor can one who has undertaken to carry on a farm for another on shares,32 or who has undertaken to select public land for purchase on shares,33 or who has contracted to sell successive crops of hemp of his own raising,34 or to plant and care for an orchard,35 or who in
22 "No one can assign his liabilities under a contract without the consent of the party to whom he is liable." Eastern Advertising Co. v. McGaw, 89 Md. 72, 86, 42 AtL 923. "You have the right to the benefit you contemplate from the character, credit, and substance of the person with whom you contract." Humble v. Hunter, 12 Q. B. 310, 317. See also Oak Grove Const. Co. v. Jefferson County, 219 Fed. 858, 135 C. C. A. 528; Gross v. Thomson's Est., 286 111. 185, 121 N. E. 600; Nelson v. Reidelbach, (Ind. App.), 119 N. E. 804; Hambleton p. Jameson, 162 Ia. 188, 143 N. W. 1010; Tarr v. Veasey, 125 Md.
199, 93 All. 428; Pioneer, etc., Co. v. Cowden, 128 Minn. 307, 150 N. W. 903, and cases in the following section. Thus the original leasee in spite of assignment of his lease and acceptance by the landlord of rent from the assignee, remains liable on his covenant to pay rent. Barnard v. Godscall, Cro. Jac. 309; Thursby v. Plant, 1 Wms. Saund. 237, 240; Taylor v. DeBus, 31 Ohio St. 468.
23 See supra, Sec. 310.
24, 25 As was attempted in Columbia Water Power Co. v. Columbia, 5. 8, Car. 225, 234.
26 King v. West Coast Grocery Co., 72 Wash. 132, 129 Pac. 1081.
27 See infra, Sec. 1940.
28 See cases of such contracts where one party or the other has died, infra, Sec.Sec. 1940 et seq. See also cases in the following section.
29 Rollins v. Riley, 44 N. H. 9; Epperson v. Epperson, 108 Va. 471, 62 S. E. 344. See also People's Trust Co. V. Weidinger, 73 N. J. L. 433,64 Atl. 179; In re Shearn's Est., 38 Utah, 492, 114 Pac. 131, 33 L. R. A. (N. S.) 347.
30 Where a promisor engaged with one who bought his abstract business to tutu over to him ail future orders for abstracts and the buyer afterwards sold out the business to a corporation, the latter could not require that orders for abstracts received by the original owner of the business should be turned over to it. Linn County Abstract Co. v. Beechley, 124 la. 146, 99 N. W. 702. So where a contract for part of a building requires professional or artistic taste, the duty cannot be delegated.
Swarts v. Narragansett Else., etc., Co., 26 R. 1.388, 436, 58 Atl. 77; Johnson v. Vickers, 139 Wis. 145, 120 N. W. 837, 131 Am. St. Rep. 1046, 21 L. R. A. (N.8.) 359.
31Taylor v. Black Diamond Min. Co., 86 Cal. 589, 25 Pac. 51; Sloan v. Williams, 138 111. 43, 27 N. E. 531; Hilton v. Crooker, 30 Neb. 707, 47 N. W. 3; Deaton v. Lawson, 40 Wash. 486, 82 Pac. 879, 2 L. R. A. (N. S.) 392, 111 Am. St. Rep. 922; Poling ». Condon-Lake, etc., Co., 56 W. Va. 529, 47 S. E. 279.
32'Fitch v. Brockmon, 3 Cal. 348; Randall v. Chubb, 46 Mich. 311, 9 N. W. 429, 41 Am. Rep. 165; Lewis v. Sheldon, 103 Mich. 102, 61 N. W. 269.
33Hudson v. Farris, 30 Tex, 574.
34 Shulti v. Johnson, 5 B. Mon. 497. Compare La Rue v. Groexinger, 84 Cal. 281, 24 Pac. 42.
35 Edison v. Babka, 111 Mich. 235, 69 N. W. 499.
return for a promised commission has undertaken to assist in the sale of land,36 or who is a party to a contract which provides for the carrying on by the parties of their respective mercantile business in conjunction,37 delegate the performance of his duty. The duty to make a warranty deed,38 or a promissory note,39 cannot be performed by any one but the contractor; nor the duties involved in a contract for the exclusive agency to sell certain goods,40 or in a contract to place advertising and supervise the advertising matter "as to style and contents,"41 or to do the printing for a county,42 or to manufacture a special class of goods of high quality - especially when the manufacturer's obligations limit his right to manufacture for other dealers,43 or to act as a depositary of funds of the other party and use them in certain ways,44 or to perform other duties personal in their character.45 If the reason why a right may not be assigned or duty delegated is not one of public policy, assent to the assignment by the other party to the contract is sufficient to make the assignment or delegation effectual.46 Such assent is often called waiver, but it is rather the acceptance of an offer to form a novation, discharging the original contract and substituting a new one in its place.47 A duty which is in its nature personal cannot be delegated by an assignment even to a corporation or partnership with changed membership which carries on a business substantially in the same way in which it was carried on previously.48
36 McGuire v. Brown, 114 Va. 235, 70 S. E. 295.
37 Moore v. Thompson, 93 Mo. App. 336, 67 S. W. 680. Bee also: Nassau Hotel Co. v. Bamett & Barse Corp., 162 N. Y. App. D. 381, 147 N. Y. S. 283.
38 Steiner v. Zwickey, 41 Minn. 448, 43 N. W. 376; Smith p. Pitta, 57 Tex. Civ. App. 97,122 8. W. 46.
39 Rapplcyc v. Racine Seeder Co., 79 Ia. 220, 44 N. W. 363, 7 L. R. A. 139.
40Bancroft v. Scribner, 72 Fed. 988, 21 C. C. A. 352, 44 U. S. App. 480; Central Brass & Stamping Co. v. Stuber, 220 Fed. 909, 136 C. C. A. 475; Rappleye v. Racine Seeder Co., 79. Ia. 220, 44 N. W. 363, 7 L. R. A. 139; Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 266, 146 N. W. 144, Ann. Cas. 1915 D. 287; Standard Sewing Mach. Co. v. Smith, 51 Mont. 245, 152 Pac. 38; Lord p. Wapato Irrig. Co., 81 Wash. 501, 142 Pac 1172.
41Eastern Advertising Company v. McGaw, 89 Md. 72, 42 Atl. 923.
42Campbell v. Board of Commissioners, 64 Kans. 376, 67 Pac. 866. Cf. Browne v. Jno P. Sharkey Co., 58 Ore. 480, 115 Pac. 156, where a contract to "print and furnish" advertising booklets was held assignable by the printer.
43Dr. Jaeger's Co. v. Walker, 77 L. T. (N. S.) 180; Schleesmger v. Forest Products Co., 78 N. J. L. 637, 76 Atl. 1024, 30 L. R. A. (N. S.) 347, 138 Am. St. Rep. 627. See also Walker Electric Co. v. New York Shipbuilding Co., 241 Fed. 569,154 C. C. A. 345. But even in such a case the contractor is not necessarily bound to manufacture all parte of the goods. Whit-comb v. Shults, 215 Fed. 75, 131 C. C. A.3S3.
44 Marquette v. Wilkinson, 119 Mich. 413, 78 N. W. 474, 43 L. R. A. 840. See also New York Bank Note Co. v. Hamilton, etc. Printing Co., 180 N. Y. 280,73 N.E.48.
45 Thus in Arkansas Valley Smelting Co. v. Belden Muting Co., 127 U. S. 379, 8 S. Ct. 1309, 32 L. Ed. 246, the assignor had undertaken to receive and assay the ore which was subject to the contract.