As rights in contract are based on the expressed intention of the parties, such rights by agreement may be limited to the original promisee. It may also be agreed that a contractual duty shall not be delegated.60 Thus, in an agreement to convey real estate it is not unusual to provide that the vendee shall not assign his right to a conveyance.61 The obligation of a carrier to deliver goods is sometimes limited by making the bill of lading not assignable.62 In obligations for the payment of money it is not common to forbid assignment where the money is absolutely due. In insurance policies, however, it is common to prohibit assignment before loss, and in such a contract the provision is natural, for insurance is a contract of indemnity, and the risk run may well be altered if the money payable under the policy is assigned before liability on it has arisen,63 though except for such a prohibition in the policy it may be assigned before maturity.64 But if such a construction of a policy is possible, an assignment of a right which has already accrued under the policy is held not to be within prohibition against assignment; 65 and even though the policy clearly forbids assignment after as well as before loss, it has been held that the provision is void,66 and the same decision has been made in regard to the assignment of other money claims.67 It can hardly be admitted, however, that public policy forbids a contract to pay money to the promisee and to the promisee only without the intervention of an agent, or a contract to pay money, only if the beneficial interest in the claim still is in the promisee.68A covenantor is not to be held beyond his undertaking, and he may make that as narrow as he likes;"69 though doubtless clear language should be required to lead to such a construction.70 The right of redemption
Bedgood, 116 Ga. 945, 43 S. E. 257. See also Sargent Glass Co.v. Matthews Land Co., 36 Ind. App. 45, 72 N. E. 474,
59 In Nassau Hotel Co. v. Bamett & Banss Corp., 162 N. Y. App. D. 381, 147 N. Y. S. 283, the owner of a hotel contracted with Barnett & Barse that they should manage it for a number of years. Barnett &. Barse formed the defendant corporation and assigned the contract to it. The court held the other party to the contract entitled to withdraw from it.
60Ordinances or statutes may likewise so provide as to particular contracts. Williams Engineering, etc., Co. v. New York, 175 N. Y. App. D. 571,162 N. Y. S. 381.
61 Lockerby v. Amon, 64 Wash. 24, 116 Pac 463, 35 L. R. A. (N. S.) 1064; Andrew v. Meyerdirck, 87 Md. 511,40 AtL173. C. Cheney . Bilby, 74 Fed. 62,20 C. C. A. 291, 36 U. S. App. 720; Johnson v. Eklund, 72 Minn. 196, 75
N. W. 14; Wagner v. Cheney, 16 Neb. 202, 20 N. W. 222; and see Thomassen v. DeGoey, 133 Ia. 278,110 N. W. 581; 119 Am. St. Rep. 605. Cf. Cowart v. Singletary, 140 Ga, 436, 79 S. E. 196.
62 Bonds-Foster Lumber Co.v. Northern Pas. R. Co., 63 Wash. 302, 101 Pac. 877. See also Williston on Sales, Sec.412.
63 If such a provision, therefore, is contained in an insurance policy the policy is invalidated if an assignment is made before loss. Spare v. Home Mut. Ins. Co., 17 Fed. 568, 671; Prudential Ins. Co. v. Ritchey (Ind.), 119 N. E. 369; Moise v. Mutual Reserve Fund Life Assoc., 46 La, Ann. 736, 13 So. 170 (life policy); National Mutual Aid Society v. Lupoid, 101 Pa. 111 (life policy). In Lynde v. Newark Ins. Co., 139 Mass. 57, 29 N. E. 222, an assent to an absolute transfer only of a fire policy was held not to protect an assignment absolute in form, but in fact intended as collateral security.
64 Miller v. Campbell, 140 N. Y. 457, 462, 36 N. E. 661 (life policy).
65 Moffitt v. Phenix Ins. Co., 11 Ind. App. 233, 38 N. E. 835 (fire policy); Morley v. Liverpool, etc., Ins. Co., 76 Minn. 285, 79 N. W. 103 (fire policy); Mellen v. Hamilton Fire Ins. Co., 17 N. Y. 609, 615 (fire policy); Penne-baker v. Tomlinson, 1 Tenn. Ch. 598, 601; Bentley v. Standard Fire Ins. Co., 40 W. Va. 729,23 S. E. 584 (fire policy). See also Lazarus v. Commonwealth Ins. Co., 5 Pick. 76 (marine policy).
66 Spare v. Home Mutual Ins. Co., 17 Fed. 568; Pennebaker v. Tomlinson, 1 Tenn. Ch. 598,601; Nease v. AEtna Ins. Co., 32 W. Va. 283, 9 S. E. 233 (fire policy). See also Hobbs v. McLean, 117 U. S. 567, 6 8. Ct. 870, 29 L. Ed. 940 (this case involved a statutory provision against assignment); Fortunate v. Patten, 147 N. Y. 277, 41 N. E. 672.
67 In Bank of United States v. Public Bank, 88 N. Y. Misc. 668, 151 N. Y. S. 26, there was a rule of the bank which required the depositor to appear in person to withdraw his account. The depositor assigned his account to the plaintiff, who sought to recover from the bank. The court held that the rule was a reasonable one as regards the depositor, but that it would not justify the bank's refusal to pay the assignee for the reason that the bank is a debtor and "cannot make rules and regulations which will limit the right to assign the debt."
68In Bonds-Foster Lumber Co. p. Northern Pac. R. Co., 53 Wash. 302, 307, 101 Pac. 877, the court said: "One who accepts an assignment of a contract, which by express terms is made non-assignable acquires only a cause of action against the assignor."
69Holmes, J., in Portuguese-American Bank v. Welles, 242 U. S. 7, 37 S.Ct.Rep. 3, 61 L. Ed. 116.
70 In Tabler v. Sheffield Land Co., 79 Ala. 377, 58 Am. Rep. 593, and Bar-ringer v. Bes Line Construction Co., 23 Okla. 131, 99 Pac. 775, 21 L. R. A. (N. S.) 597, it was provided that certain time checks should be payable only when receipted in person by the payee. It was held that an assignee had no right against the debtor. See also Burck v. Taylor, 152 U. S. 634, 38 L. Ed. 578,14 8. Ct. 696; La Rue v. Gnoenger, 84 Cal. 281, 24 Pac 42, evidenced by trading stamps, though ordinarily assignable,71 may by express terms of the contract be confined to assignees answering a particular description.72 So a duty which might ordinarily be performable by an agent may by the express terms of the contract be made a personal duty, or oversight of the performance may be made a personal duty. Thus an obligation to build a house may by its terms forbid assignment. This provision would not involve the conclusion that any agent over whom the contractor exercised supervision as a master might not be employed, but it would forbid the delegation of the duty of supervision. Where a bilateral contract in terms forbids assignment, it becomes a matter of construction what is meant. Is it intended that a duty under the contract shall not be delegated, or is it intended that a right shall not be assigned, or are both prohibitions intended? When a contract for building or other work for instance forbids assignment, does it mean only that the builder shall not delegate his duties, or not only this but also that he shall not assign his right to the payments to which he is entitled? It is probable that on a fair construction the prohitition will generally be found to relate only to the delegation of bis duty by the builder.73 But
18 Am. St Rep. 179; Mueller v. Northwestern Univ., 195 111. 236, S3 N. E. 110, 88 Am. St. Rep. 194; State v. Kent, 98 Mo. App. 281,71S. W. 1066; Devlin v. Mayor, 63 N. Y. 14,17. But see Bewick Lumber Co. v. Hall, 94 Ga. 639,21S. E. 154; Weber v. Rosenheim, 37 111. App. 72; Herrick v. Edwards, 106 Mo. App. 633, 81 S. W. 468; Aldridge Lumber Co. v. Graves (Tex. Civ. App.), 131S. W. 846.
71 Sperry & Hutchinson Co. v. Hertsberg, 69 N. J. Eq. 264, 60 Atl. 368.
72 Sperry & Hutchinson Co. v. Weber, 161 Fed. 219, 22 Harv. L. Rev. 60.
73Bank of Harlem v. Bayonne, 48 N. J. Eq. 246, 21 Atl. 478. See for other instances of such contracts, Staples p. Somerville, 176 Mass. 237, 67 N. E. 380; Wakefield v. American Surety Co., 209 Mass. 173; Barringer v. Bes Line Construction Co., 23 Okla. 131, 99 Pac. 775, 21 L. R. A. (N. S.) 597; Bonds-Poster Lumber Co. v. Northern Pacific R. Co., 53 Wash. 302, 101 Pac. 877. See also De Vita v. Loprete, 77 N. J. Eq. 533, 77 Atl. 536, Ann. Cas. 1912 A. 362; Fortunate v. Patten, 147 N. Y. 277, 41 N. E. S72. In Omaha v. Standard Oil Co., 55 Neb. 337, 75 N. W. 859, however, a provision in a contract for the lighting of streets that the contract should not be assignable was held to invalidate an assignment of certain instalments of the payment which had become due. It may be questioned whether this decision is sound. The court said that the assignment would compel "the city to deal with strangers and to determine at its peril which of the contesting claimants were entitled to the fund. This may have been one it may be so clearly stated to be applicable to the right as well as the duty as to forbid another construction.74
And in contracts of other kinds assignment may be prohibited, or allowed effect only on certain conditions.75 But a pro vision in a contract of service that an assignment of wages would subject an employee to immediate dismissal does not make an assignment ineffectual.76
A prohibition of assignment or a condition restricting performance of the debtor's obligation to the original promisee is intended for the benefit of the debtor and cannot affect the equitable rights of the assignor and assignee as between themselves.77 Accordingly if the assignor should collect the assigned claim he would be bound to pay what he had collected to the assignee. The debtor also, though entitled to object, may waive his objection to the prohibition;78 and tacit permission, after notice of the assignment, that the assignee may continue performance, amounts to a waiver.79 Nor can a junior assignee of the very eontingenraee contemplated by the city and against which it sought to provide by malting the contract non-assignable. Thar object in view may have been to prevent the company from losing interest in the performance of the contract by divesting itself of all beneficial interests therein." While it seems dear that by plain language the right to the payments might be confined to the original contractor only, it does not seem that the possibilities suggested are such as to require the meaning which the court gave to the prohibition against assignment. See also Murfy v. Plattsmouth, 78 Neb. 103,110 N. W. 749.
74 E.g., in Portuguese-American Bank v. Welles, 242 U. S. 7, 37 8. C. Rep. S, 61 L. Ed. 116.
75 Zetterhind v. Texas Land Co., AS Neb. 355, 76 N. W. 860. But see Bewick Lumber Co. v. Hall, 94 Ga. 639, 21 S. E. 164, in which it was held that a statutory provision making choses in action assignable, overrode the provision of the obligation assigned. See also the provision of the Iowa statute making the assignment of "an instrument" effective in spite of a prohibition contained in it but subject to any defence or counterclaim, which the maker might have prior to suit brought. Wing v. Page, 62 Ia. 87, 11 N. W. 639, 17 N. W. 181.
76 Wabash It. Co. v. Smith, 134 JUL App. 674.
77 In re Turoan, 40 Ch. D. 6; Portuguese-American Bank v. Welles, 242 U. S. 7, 37 8up. Ct. Rep. S.
78 Union Collection Co. v. Oliver, 23 Cal. App. 318, 137 Pac. 1082; Todd v. Guffin,651nd. App.6058 104N.E.619; Grigg v. Landis, 21 N. J. Eq. 494; Haekett v. Campbell, 10 N. Y. App. Div. 623, 42 N. Y. S. 47; Brewster v. Hornellsville, 36 N. Y. App. Div. 161, 64 N. Y. S. 904; Sharp v. Edgar, 3 Sanford,381.
77Staples v. Somerville, 176 Mass. 237,57 N. E. 380, and see oases cited in the preceding note.
object to the priority of a senior assignment on the ground of a prohibition in the contract against such an assignment, if the debtor waives the objection.80