The duty of a publisher under a contract with an author involves a personal relation and therefore since the performance cannot be delegated, the publisher cannot assign the contract;54 indicate a repudiation of further liability. See also as to the meaning of the words "without recourse" in assignment of non-negotiable contract, Binswanger p. Hewitt, 79 N. Y. Misc. 426, 140 N. Y. 8.143.
49 See cases cited supra, Sec. 412. In Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 260, 146 N. W. 144, the defendants contracted with the plaintiff's assignor for the sale of stamp-vending machines. Proof that the defendants performed the contract by furnishing machines to the plaintiff's assignor, and accepting in payment the plaintiff's check, will not establish a novation, because not establishing their assent to the asaignment.
50 Rappleye v. Racine Seeder Co., 79 Ia. 220,44 N. W. 303,7 L. R. A. 139.
51 See infra, Sec.880.
52 See supra, Sec. 413; Hall v. Gardner, 1 Mass. 172; Davis v. Coburn, 8 Mass. 299; Streetcr v. Sumner, 31 N. H. 542.
53 Nelson v. Retdelbach (Ind. App.), 119 N. E. 804.
54Reade v. Bentley, 3 K. 4 J, 271; Stevens p. Benning, 1 K. 4 J. 168, 6 DeG. M. & G. 223; Hole v. Bradbury, 12 Ch. Div. 886; Griffith v. Tower Publishing Co.,  1 Ch. 21; American Lithographic Co. v. Ziegler, 216 Mass. 287, 103 N. E. 90S. Cf. Sunday Mirror Co. v. Galvin, 55 Mo. App. 412. This was held to be true even though the contract with the publisher provided that the publishing corporation "its representatives and assigns," should keep the promises contained in the contract. Wooster v. Crane, 73 N. J. Eq. 22, 66 Atl. 1093.
and generally the assignability of a bilateral contract must be tested by considering separately whether performance of its obligation can be delegated and whether its rights can be assigned.55 Sometimes a party to a bilateral contract without attempting to delegate performance of his duties, assigns his rights under the contract. In such a case the question is the same as if the promisee in a unilateral contract attempted to assign similar rights. In an English decision,56 an owner of chalk quarries contracted to supply a certain cement company with as much chalk as that company should require for the whole of their manufacture of Portland cement upon their land near the quarries. The manufacturers assigned their business, including this contract, to a larger company. The House of Lords held, though with divided opinions, that the benefit of the contract might be assigned although the word assigns was not contained in the promise of the owner of the chalk quarries. The case must be rested on a construction of the contract making the test of the amount of chalk to be furnished not the personal needs of the original promisee, but the capacity of that promisee's land and the machinery thereon.57 But in a later decision the English Court of Appeal held that where a cake manufacturer contracted for a supply of all the eggs that he should "require for manufacturing purposes for one year," promising, himself, not to purchase eggs from any other merchant during the year, the duty of the manufacturer could not be delegated and that when he transferred his business to a company the seller was freed from all further obligations.58 And even though the assignee is a corporation formed by the assignor and controlled by him, the result is the same.59
This decision was by a single judge, and it seems that too little effect was given to the use of the word "assigns."
55 See Sec. 411, 413.
56 Tolhurst v. Portland Cement Mfre. Co.,  A. C. 414.
57See Kemp v. Bamelman,  2 K,. B. 604, 606, arguendo.
58Kemp v. Basrselman,  2 K. B. 604. The court laid stress on the fact that the manufacturer covenanted not to purchase eggs elsewhere. After the manufacturer had conveyed away his business, this covenant could not bind the transferee of the business, and even though it still bound the original manufacturer, his refraining from buying eggs elsewhere was not a contemplated consideration for selling eggs to any one except the manufacturer himself. In a Georgia case a railroad company had contracted to build a side line, and haul the entire output of lumber of the other parly to the eon-tract which on its part agreed to ship its entire output by the railroad. It was held that the right to compel performance by the railroad company could not be assigned by the other party. Tifton, etc., Railroad Co.v.