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.
Since the intention of the parties must be deduced from the terms of the contract when considered in the light of the surrounding circumstances, and since the unexpressed intention of one party which is not made a part of the contract is inoperative,1 the personality of the adversary party must be contracted for in express terms, or must be material from the nature of the subject-matter of the contract and the surrounding circumstances, in order to render the contract non-assignable.2 The fact that one of the parties to the contract believes that the adversary party will perform in person, does not render the contract non-assignable, if such method of performance is not contracted for expressly, or is not fairly implied from the nature of the subject-matter and surrounding circumstances.3 A contract to cut timber,4 or to deliver cordwood,5 or to transport certain kinds of goods,6 or to construct a railway switch,7 or a contract by which a telegraph company is to construct a line upon the right of way of a railway company,8 a contract to furnish electricity to certain premises,9 are none of them contracts of a personal character, and they can all be assigned. A contract by A to lease wagons to B and to keep them in repair, may be assigned by A to C so that C may perform over B's objection,10 while a similar contract to lease a private carriage to B, to keep it in repair and to paint it once a year, has been held not to be assignable.11 A contract by which A, who is not a manufacturer, agrees to furnish to B goods which answer to a certain description and which can be bought in open market, may be assigned by A to G.12 A covenant by which B, who sells his business to A, agrees not to compete with A, is not personal, and may be assigned by A to C on the sale of such business to C.13
1 See Sec. 110 et seq.
2 England. British Wagon Co. v. Lea, L. R. 5 Q. B. D. 149.
Scotland. Cole v. Handasyde , S. C. 68, [19091, 2 Scots. L. T. 358.
United States. Horst v. Roehm, 84 Fed. 565.
Arkansas. Leader Co. v. Little Bock Ry. & Electric Co., 120 Ark. 221, 179 S. W. 358.
Michigan. Detroit, T. & I. R. Co. v. Western Union Telegraph Co., 200 Mich. 2, 166 N. W. 494.
North Carolina. Younce v. Broad Road Lumber Co., 148 N. Car. 34, 61 S. £. 624.
Oregon. Corvallis & A. R. R. Co. v. Portland, E. & E. Ry. Co., 84 Or. 524, 163 Pac. 1173.
3 Horst v. Roehm, 84 Fed. 56.5; Detroit, T. & I. R. Co. v. Western Union Telegraph Co., 200 Mich. 2, 166 N. W. 494; Younce v. Broad Road Lumber Co., 148 N. Car. 34, 61 S. E. 624. See however, Schlessinger v. Forest Products Co., 78 N. J. L. 637, 30 L. R. A. (N.S.) 347, 76 Atl. 1024.
4 Younce v. Broad Road Lumber Co., 148 N. Car. 34, 61 S. E. 624.
5 Atlantic & N. C. R. Co. v. Atlantic & N. C. Co., 147 N. Car. 368, 125 Am. St. Rep. 5.30, 23 L. R. A. (N.S.) 223, 15 Am. & Eng. Ann. Cas. 363, 61 S. E. 185.
6C. H. Little Co. v. Cadwell Transit Co., 197 Mich. 481, 103 X. W. 952.
7 Corvallis & A. R. R. Co. v. Portland, E. & E. Ry. Co., 84 Or. 524, 163 Pac. 1173.
8 Detroit, T. & I. R. Co. v. Western Union Telegraph Co., 200 Mich. 2, 166 N. W. 494.
9 Leader Co. v. Little Rock Ry. & Electric Co., 120 Ark. 221, 179 S. W. 358.
10 British Wagon Co. v. Lea, L. R. 5 Q. B. D. 149.
"We entirely concur in the principle on which the decision in Robson v. Drummond, 2 B. & Ad. 303 rests, namely, that where a person contracts with another to do work or perform service, and it can be inferred that the person employed has been selected with reference, to his individual skill, competency or other personal qualification, the inability or unwillingness of the party so employed to execute the work or perform the service is a sufficient answer to any demand by a stranger to the original contract of the performance of it by the other party, and entitles the latter to treat the contract as at an end, notwithstanding that the person tendered to take the place of the contracting party may be equally well qualified to do the service. Personal performance is in such a case of the essence of the contract, which consequently can not in its absence be enforced against an unwilling party. But this principle appears to us inapplicable in the present instance, inasmuch as we can not suppose that in stipulating for the repair of these wagons by the company - a rough description of work which ordinary workmen conversant with the business would be perfectly able to execute - the defendants attached any importance to whether the repairs were done by the company or by any one with whom the company might enter into a subsidiary contract to do the work. All that the hirers, the defendants, cared for in this stipulation was that the wagons should be kept in repair; it was indifferent to them by whom the repairs should be done. Thus, if without going into liquidation or assigning these contracts, the company had entered into a contract with any competent party to do the repairs, and so had procured them to be done, we can not think that this would have been a departure from the terms of the contract to keep the wagons in repair. While fully acquiescing in the general principle just referred to, we must take care not to push it beyond reasonable limits; and we can not but think that in applying the principle, the Court of Queen's Bench in Robson v. Drummond, 2 B. & Ad. 303, went to the utmost length to which it can be carried, as it is difficult to see how in repairing a carriage when necessary or painting it once a year, preference would be given to one coachmaker over another. Much work is contracted for which it is known can only be executed by means of sub-contracts; much is contracted for as to which it is indifferent to the party for whom it is to be done whether it is done by the immediate party to the contract or by someone on his behalf. In all these cases the maxim qui facit per alium facit per se applies." British Wagon Co. v. Lea, 5 Q. B. D. 149.
11 Robson v. Drummond, 2 B. & Ad. 303. (B was also to pay each year in advance.)
12 Cole v. Handasyde , S. C. 68, , 2 Scots L. T. 358.
"Nobody doubts that the law as to whether a contract is assignable or not depends upon whether, as the expression goes, there is the element of delectus personae in it or not. Now I think by way of illustration there are three stages to be taken. The highest and easiest example of a contract in which there is delectus personae is where the contract is one for a personal service of a peculiar nature. Nobody supposes that in a contract with A or B to paint a picture or write a book it is possible for A or B to say, 'I will get somebody else to paint you the picture or write you the book, and that must satisfy you, and you must pay me the price.' Next you have another class where the delectus personae is not so clear. I mean the case of manufactured articles. It may quite well be that an article is of such a character and quality, and the reputation of the manufacturer such, that when you contract for a thing from so-and-so, you really imply that the article is to be made by so-and-so. For instance, a contract for a gun from Purdie would not be well implemented by giving you a gun bought in the ordinary market in Birmingham. There are of course, cases where it is not easy to determine on which side the matter falls, but there are cases where the difficulty lies in the application of the law to the particular circumstances. But when we come away from manufacturers, and this is the case here, and when you come to a contract with a person who does not himself manufacture and does not profess to - a contract for goods of a certain description (it really does not matter whether at this present moment these goods have been made or not) - then it seems to me that you may go on and contract in one form or another. You may either say, 'I contract with you that you shall supply me with goods as to which you shall do something, or as to which you shall satisfy yourself in such and such a way,' and then you really incorporate into your contract for the goods a contract also for the personal services of the person with whom you contract; or on the other hand, you may contract for an article and then stipulate that the article is to be of a certain standard which is specified in the contract and say no more. It seems to me that in this latter case the whole element of the delectus personae is gone.*' Cole v. Handasyde , S. C. 68; , 2 Scots. L. T. 358.