The apparent misunderstanding of some courts as to the meaning of assignment in a bilateral contract, to which attention is called in the preceding section, is in many cases probably merely a reflection of a similiar misunderstanding of the parties themselves. Doubtless parties to bilateral contracts frequently attempt to effect the substitution of the liability of a new party for that of one of the original parties, and frequently call such an attempted transaction an assignment. By whatever name the parties may call the transaction, if it is made clear that the so-called assignor intends by the transaction to be free from all further liability, it seems that acceptance by the other party to the contract of any subsequent performance from the so-called assignee, would amount to assent to a proposed novation, and the so-called assignor would be discharged from further liability.47 Such an offer may always be refused, and if the so-called assignor in effect has indicated that he will not thereafter be responsible for the performance of his promise, and that the other party to the contract must look solely to the so-called assignee, there is a repudiation of contract by the assignor which justifies the injured party in refusing altogether to continue performance. Repudiation is none the less an excuse to the other party to the contract when accompanied by the statement that the obligations of the repudiator have been assumed and will be fulfilled by another person.48 The question of diffi-
44 Mangles v. Dixon, 3 H. L. C. 702. See also supra, &Sec. 301-363.
45 See swpro, Sec.Sec. 4, 13. E. g., where the assignor was to be entrusted as bailee with property of the other. See Arkansas Vallly Smelting Co. v. Belden Mining Co., 127 U. S. 379, 8
S. Ct, 1308, 32 L. Ed. 246; Stookstill v. Byrd, 132 La. 404,61 So. 446.
46Eastern Advertising Co. p. Me-Gaw, 89 Md. 72, 42 Atl. 923; Tarr v. Veasey, 125 Md. 199, 93 Atl. 428. See tunra,Sec. 411.
47 See Fleming v. Law, 163 Cal. 227, 124 Pac. 1018, and infra, Sec. 1S75.
48This is dearly brought out in Pike v. Watham, 168 Mas. 581, 47 N. E. 437. See also Rosenthal Paper Co. v. National, etc., Paper Co., 17S N. Y. App. D. 606, 162 N. Y. S. 814. It is on this ground that the decision in Arkansas Valley Smelting Co. v. Belden Mining Co., 127 U. S. 379, 8 S. Ct. 1308, 32 L. Ed. 246, should be rested. So in Robson v. Drummond, 2 B. & Ad. 303, a coach-maker contracted to furnish the defendant the use of a carriage for five years at an annual payable price in advance. After three years the coachmaker "assigned" the contract to his secret partner. The defendant refused to continue performance of the contract with the assignee and was held justified in so doing. The case is undoubtedly sound, but the objection is not that the price was payable in advance and therefore personal credit was involved. If the original coachmaker had continued ready, willing and able to carry out his obligation, he could have authorized an assignee to collect the payment in advance and keep it as his own. The real ground for relieving the defendant from liability is that the coachmaker repudiated his obligation. He showed by assigning his business and otherwise that he no longer intended to fulfil his obligations. Such repudiation was an excuse to the defendant
(see infra, Sec.} 875, 1315), whether the coachmaker's obligation was personal in character or not, and whether or not it was accompanied by an offer to substitute another's liability for his. So in Lansden v. McCarthy, 45 Mo. 106, the defendant was held not bound to continue to deliver meat on credit according to the terms of a written contract with the plaintiff's assignors. The court well says: "The contract imposed no obligation upon the defendant to accept as his debtors any other parties than those with whom he contracted;" but the question should at least have been touched upon, whether he was asked to; whether the assignors did not continue to be responsible for the meat delivered after the assignment, precisely as before. See British Wsggon Co. v. Lea, 5 Q. B. D. 149. If indeed the facta warranted the conclusion that the assignor disclaimed liability for future deliveries of meat, the case is well decided. So, where a contract was made to sell land on credit to two jointly, the vendor was not obliged to carry out the contract when one of the vendees repudiated his obligations, though he assigned his righto to his co-vendee. Hambleton d. Jameson, 162 Ia. 186, 143 N. W. 1010. So in Johnson v. Vickers, 139 Wis. 145, 120 N. W. 837, 21 L. R. A. (N. S.) 359, a building contractor assigned his contract "without recourse." Such words necessarily culty is one of construction. In a particular case when a party to a bilateral contract purports to assign it, does he mean to disclaim further liability and in effect to propose a novation? It is submitted that on these bare facts this is not the proper construction. It should rather be assumed in the absence of countervailing circumstances that the word assignment is used in its proper sense, meaning a transfer of rights but only a delegation of the performance of duties.49
Assignment for the benefit of creditors or in bankruptcy of a party to a bilateral contract still partially unperformed by the assignor excuses the other party to the contract from giving credit,50 for the same reason that insolvency without an assignment would do so.51