Every bilateral contract while still executory on both aides involves both rights and duties for each party. As has been seen in the preceding section, duties under a contract cannot in any true sense be assigned. It follows therefore that no bilateral contract still executory on both sides can be assigned in such a sense as to substitute fully the assignee in the place of the assignor. What can be done is: (1) A novation may be made eliminating one of the parties to the original contract and substituting another in his stead; but this requires the assent of all three parties to the transaction.49 (2) Either party to the contract, without the assent of the other, may assign such rights as have accrued to him or are expected to accrue to him under the contract, unless they are personal or the assignment is forbidden by the contract or by public policy. An assignment of this sort is in effect an assignment of a unilateral right.50 Thus assignment of money to become due
46 Cleveland, etc., R. Co. v. Wood, 189 111. 352,354,59 N. E. 619; Weather-shogg v. Commissioners, 158 lad. 14, 62 N. E. 477; Moffitt v. Phenix Ins. Co., 11 Ind. App. 233, 38 N. E. 835; Pulaski Stave Co. v. Miller's Creek Lumber Co., 138 Ky. 372, 128 S. W. 96; Hoag v, Reichert, 142 Ky. 298, 134 S. W. 191; Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 266, 146 N. W. 144; Harlow v. Ore-gonian Pub. Co., 53 Ore. 272, 100 Pac. 7; National Mutual Aid Soc. v. Lupoid, 101 Pa. 111.
47Hoag v. Reichert, 142 Ky. 296, 134 S. W. 191; Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 266, 146 N. W. 144.
48 Kemp v. Baerselman, (1906) 2 K. B. 604; Moore v. Thompson, 93 Mo. App. 336, 67 S. W. 680; New York Bank Note Co. v. Hamilton, etc., Printing Co., 180 N. Y. 280,73 N. E. 48; and see supra, Sec. 316.
49 As to how fax assent of all parties is necessary in novations, see infra, Sec.Sec. 1870, 1871.
50See infra, Sec.413. "And asignunder a building contract is frequently made.51 (3) Either party may make such an assignment of rights and also contract with the assignee that the latter shall perform the duties under the contract which bind the assignor, if they are of a kind which can be delegated. It is no doubt bargains of this last character which are commonly called assignments of bilateral contracts, and perhaps no better single word can be found though so far as it implies that the original obligor is freed from his liability, it is misleading. There is an assignment of rights, but a mere delegation of duties; and inquiry must be separately made as to whether the right may be assigned, and whether performance of the duties may be delegated. The assignor remains bound to perform the duties,52 and the ment of money due or to become due under an executory contract is not an assignment of the contract, and the assignee is not bound to perform it." Lunt v. Lorecheider, 285 111. 689, 121 N. E. 237, 239.
51 Butler v. San Francisco Gas & Elec. Co., 168 Cal. 32, 141 Pac. 818; Daugherty v. Gouff, 23 Neb. 105, 36 N. W. 351; Stott v. Franey, 20 Ore. 410, 26 Pac 271; Philadelphia v. Lock-hardt, 73 Pa. 211; Smith v. Hubbard, 86 Tcnn. 306, 2 8. W. 669; Iaege v. Bosdeux, 15 Gratt. 83, 76 Am. Dec. 189; Rockwell v. Daniels, 4 Wis. 432. So in a contract for the publication of an advertisement. American lithographic Co. v. Ziegler, 216 Mass. 287, 103 N. E. 909. See also Leonard v. Famngton, 124 Minn. 160, 144 N. W. 763.
52 The assignor's "attitude is that of a contracting party who called on and enlisted the services of others, vis. his assignees to aid him in performing the contract." Pulaski Stave Co. p. Miller's Creek Lumber Co., 138 Ky- 372, 128 S. W. 96. In Rochester lantern Company v. Stiles & Parker Press Company. 135 N. Y. 209, 31 N. E. 1018, one Kelly had entered into a contract with the defendant by which the latter agreed to make and deliver to the former, for a specified price, certain dies to be used in the manufacture of lanterns. Kelly subsequently assigned the contract to the plaintiff corporation, which brought action to recover damages for the failure of the defendants to furnish the dies. Earle, C. J., in delivering the opinion of the court said (at page 216): "After the assignment Kelly had no interest in the contract, and the defendant owed him no duty and could come under no obligation to him for damages on account of a breach of the contract by it. There is no doubt that Kelly could assign this contract as he could have assigned any other chose in action, and by the assignment the assignee became entitled to all the benefits of the contract. Devlin v. Mayor, 63 N. Y. 8, 17. The contract was not purely personal in the sense that Kelly was bound to perform in person, as his only obligation was to pay for the dies when delivered, and that obligation could be discharged by any one. He could not, however, by the assignment absolve himself from all obligations under the contract. The obligations of the contract still rested upon him, and resort could still be made to him for the payment of the dies in assignee is under no liability to the other party to the contract.53 If performance is not only delegated to the assignee, but a promise exacted from him that he will perform the delegated duties, the right of the other party to the contract to take advantage of this promise involves substantially the same question as any case where an obligation of a promisee to a third person is assumed by a promisor.54 But even in jurisdictions where it has not as yet been broadly held that such an assumption of an obligation gives a creditor a direct right against the assuming party, it seems probable that in equity the obligation undertaken by the assignee of the contract may be enforced by the non-assigning party to the original contract.55 If the assignee does not expressly assume the obligations of the assignor it becomes a question of construction whether he impliedly promises to perform the delegated duties. It is doubtless possible for a party to a bilateral contract to assign only the rights that will accrue to him under the contract without delegating the duties. If he clearly case the assignee did not pay for them when tendered to it. After the assignment of the contract, to the plaintiff the defendant's obligation to perform still remained, and that obligation was due to the plaintiff." 80 in Clement v. Philadelphia, 137 Pa. 328, 334, 20 Atl. 1000, 21 Am. St. Rep. 876, the court said that in spite of an assignment by the contractor C, "the city could require C to complete the work according to his contract." See also as illustrating the continuing liability of the assignor, Oak Grove Const. Co. v. Jefferson County, 219 Fed. 868, 135 C. C. A. 528; Anderson v. De-Uricate, 96 Cal. 404, 31 Pac. 266; Crane v. Kildorf, 91 111. 567; Brassel v. Troxel, 68 111. App. 131; Hofman v. Chicago League Ball Club, 195 111. App. 249; Martin v. Omdorff, 22 Ia. 504; Pike v. Waltham, 168 Mass. 581, 47 N. E. 437; Pioneer Loan & Land Co. v. Cowden, 128 Minn. 307, 150 N. W. 903; Currier v. Taylor, 19 N. H. 189; Liberty Wall Paper Co. v. Stoner Wall
Paper Mfg. Co,, 59 N. Y. App. D. 353, 69 N. Y. S. 356, affd 170 N. Y. 582, 63 N. E. 1119; Breakstone v. Buffalo Foundry Co., 167 N. Y. App. D. 62, 152 N. Y. S. 394, and see cases in the preceding section.
53 Gross 0. Thomson's Est., 286 111 185, 121 N. E. 600; A. S. Cameron Steam Pump Works v. Lubbock, etc., Co. (Tex. Civ. App.), 167 S. W. 256.
54Seemipra, Sec.Sec. 361, 381.
55 This has been so held in England: Mangles v. Dixon, 3 H. L. C. 702. In the United States, also, the law allows recovery. Smith v. Rogers, 14 Ind. 224; Smith v. Flack, 95 Ind. 116; Wiggins Ferry Co. v. Chicago & A. R. Co., 73 Mo. 389, 39 Am. Rep. 519; Bach v. Boston, etc., Mining Co., 16 Mont. 467, 41 Pac. 75; Union Pac. R. Co. v. Douglas County Bank, 42 Neb. 469, 60 N. W. 886; Atlantic, etc., R. Co. v. Atlantic, etc., Co., 147 N. C. 368, 61 S. E. 185, 23 L. R. A. (N. S) 223, 125 Am. St. Rep. 550.
delegates the duties as well as assigns the rights it seems a reasonable construction of the bargain that the assignee impliedly undertakes the performance of the duties.56, 57