This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If A makes an offer to B, B can not assign if such offer is not for value; and B's assignee can not accept and thus establish contractual relations with A, at least if A does not know that such assignee is the party who accepts.1 While A may assent to such substitution and thus become bound, this is in effect a new offer by C which A accepts, if the original offer is not to B and his assigns. If, by its terms, the offer was made to the offeree or to his assignees, no reason appears for denying full effect to such provision or for doubting the power of the assignee to accept, since such offer might, by its terms, have been made to the general public; and this is an offer to a far more restricted class. If A makes such offer to B and his assigns, A may be regarded as assenting to such substitution in advance. Accordingly, an offer to one "and his assigns" may be assigned, though not given for value.2
If an offer for value is made assignable by its terms,3 as where it is made by its terms to the offeree and his assigns,4 it may be assigned so that the assignee can accept the offer and complete the contract, even though it contained a provision that the vendee should be the exclusive judge as to whether the title to the property was free from defects.5 An offer for value which, by its terms, is not expressly made assignable or non-assignable, can be assigned so that the assignee can accept and thus establish contractual relations with the offeror.6 On this question there is, however, a conflict of authority and it has been held that an offer for value can not be accepted by an assignee unless, by its terms, it is made to the offeree or to his assigns.7 On the other hand, since a provision in a contract which restricts an assignment thereof, is valid,8 such a provision in an offer for value prevents it from being assignable, as where credit was, by the terms of the contract, to be given to the original offeree. The same result follows where the offer is, by its terms, made to the offeree and to no other person;10 and, it has been held, where the offeree is given the right to select which tract out of two or more he will take.11 It has been said, in obiter, that an offer under seal could not be assigned if it was not made, by its terms, to the offeree and his assigns;12 but this statement was made in a case in which the real holding was that such offer did not survive the death of the offeree.
5 Board of Commissioners v. Davis, 162 Ind. 60, 64 L. R. A. 780, 60 N. E. 680.
6 Mount v. Board of Commissioners, 168 Ind. 661, 14 L. R. A. (N.S.) 483, 80 N. E. 629.
1 Boulton v. Jones, 2 H. & N. 564; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Dyer v. Duffy, 39 W. Va. 148, 24 L. R. A. 339, 19 S. E. 540. (In this case, furthermore, the offer was not accepted in time.)
2 Wheeling Creek Gas, Coal & Coke Co. v. Elder, 170 Fed. 215.
3 Simmons v. Zimmerman, 144 Cal. 256, 79 Ac. 451; Rice v. Gibbs, 33 Neb. 460, 50 N. W. 436; Strasser v. Steck, 216 Pa. St. 577, 66 Atl. 87.
4 Simmons v. Zimmerman, 144 Cal. 256, 79 Ac. 451; Hollander v. Central Metal & Supply Co., 109 Md. 131, 23 L. R. A. (N.S.) 1135, 71 Atl. 442; Gust in v. School District, 94 Mich. 502, 34 Am. St. Rep. 361, 54 N. W. 156; Fulton v. Messenger, 61 W. Va. 477, 56 S. E. 830.
5 Simmons v. Zimmerman, 144 Cal. 256, 79 Ac. 451.