The rule as to the assignability of such instruments is that all contracts may be assigned, either before or after the breach, which were not entered into, upon the one side or the other, on account of a personal trust in the peculiar fitness of the other party to perform his part. An illustration often used is that of an author to write a book; or an artist to paint a picture; neither of which can be assigned on the part of the person whose genius is depended upon. But an agreement to pay $1,000 for a valuable consideration, or to deliver ten tons of coal at so much per ton, cannot belong to this class of cases, as in either instance it can make no difference to either party who executes the other part of the contract. Where taste, skill, or genius is one of the elements relied upon the contract cannot be assigned; where it is only a question of so much lost or so much gained whoever performs the contract, it may be assigned.

The New York Court of Appeals, in Devlin vs. Mayor,13 has given a criterion to decide cases of this character. This criterion is, that whatever contracts are binding upon the executors or administrators may be assigned while those that die with the person cannot be assigned. While it is true that in both instances we must go back to the principle of personal skill, taste, or genius, as the real test, the fact that this has been the test so far as executors and administrators are concerned for centuries of the common law, will make it much easier to apply in the matter of the assignability of contracts. So that all the cases deciding the question of the liability or rights of the executor or administrator upon executory contracts of the decedent, can be quoted or applicable to the question of the assignability of contracts.

12 Bangor Bank vs. Treat, 6 Greenl., 207; 19 Am. D., 210.

13 63 N. Y., 8,16.

The general rule as to executors was stated by the Queen's Bench in time of Queen Elizabeth to be that "a covenant lies against an executor in every case, although he be not named; unless it be such a covenant as is to be performed by the person of the testator which they cannot perform." 14

Lord Coke, a few years later, in the case of Quick vs. Ludborrow,15 states the rule to be the same, and says that if one is bound to build a house for another before such a time and dies, his executors are bound to perform the contract. While this was a dictum so far as that case was concerned, it is valuable as an illustration of how ancient the principle we are contending for is, and it is also valuable in that the great Chief Justice goes back yet further for his authority, citing to support it the Year Books 31 H. VI and 15 H. VII.

The Barons of the Exchequer affirmed the dictum of Lord Coke by deciding that where the testator had contracted to build a wooden galley and died before any of the work was done, and his executors had gone on and completed the work, the executors might sue on the contract and recover - Lord Lynd-hurst putting his decision on the ground of the difference between contracts personal in their nature and those that are not.16

14 Hyde vs. Dean and Cnaons of Windsor, Cro. Eliz., 553.

15 3 Bulstr. 29, 30.

A rule so unanimously declared to be a maxim of the common law has never been doubted by the American courts.17

The English courts have not in terms announced the doctrine stated in New York; but they have, by applying the same principles to both personal representatives and assignees, made it practically the same. The fundamental principle of personal and non-personal contracts runs through all the cases.18

The American authorities are, if it were possible, much stronger upon the side of assignability than are the English. The New York decisions being particularly numerous on this question.19

On the question of what contracts are not assignable the Supreme Court of the United States in Smelting Co. vs. Belden Mining Co.,20 said: "At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable.

16 Marshall vs. Broadhurst, 1 Tyrwh 348 s. c, 1 Cr. & Jer., 403; see also, Siboni vs. Kirkman, 1 M. & W., 417; s. c, 4 M. & W, 339 Wentworth vs. Cook, 10 ad. & El., 42; Walker vs. Hall, 2 Levinz, 177; Hyde vs. Skinner,

2 P. Wms., 196; Berisford vs. Woodruff Croke, Jac, 404.

17 Petrie vs. Vorhees, 18 N. J. Eq.,

3 C. E. Green, 285; Woods vs. Ridley, 27 Miss., 119; Ringle vs. McPherson, 2 Desaussure, 524; White vs. Commonwealth, 39 Penn. St., 167.

18 Robson vs. Drummond, 2 B. & Ad., 303; Wentworth vs. Cock, supra.; British Wagon Co. vs. Lea, 5 Q. B. D., 149.

19 Devlin vs. Mayor, supra; Sears vs. Conover, 3 Keyes, 113; Tyler vs. Barrows, 6 Robertson (N. Y.), 104; Horner vs. Wood, 23 N. Y., 350; see also, in the reports of the other States, Taylor vs. Palmer, 31 Cal., 240; Parson vs. Woodard, 22 N. J. L. (2 Zabriskie), 196; Philadelphia vs. Lockhardt, 73 Peen St., 211; Lafferty vs. Rutherford, 5 Ark., 453; St. Louis vs. Clemens, 42 Mo., 69; Groot vs. Story, 41 Vt., 533.

20 127 U. S„ 379.

"But every one has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Cenman, 'You have a right to the benefit you anticipate from the character, credit, and substance of the party with whom you contract.' Humble vs. Hunter, 12 A. B., 310, 317; Winchester vs. Howard, 97 Mass., 303, 305; Boston Ice Co. vs. Potter, 123 Mass., 28; King vs. Batterson, 13 R. I., 117, 120; Lansden vs. McCarthy, 45 Mo., 106. The rule upon this subject, as applicable to the case at bar, is well expressed in a recent treatise. 'Rights arising out of contract cannot be transferred if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party, whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided.' Pollock on Contracts (4th ed.), 425.

"The contract here sued on was one by which the defendant agreed to deliver ten thousand tons of lead ore from its mines to Billing and Eilers at their smelting works. The ore was to be delivered at the rate of fifty tons a day, and it was expressly agreed that it should become the property of Billing and Eilers as soon as delivered. The price was not fixed by the contract, or payable upon the delivery of the ore. But, as often as a hundred tons of ore had been delivered, the ore was to be assayed by the parties or one of them, and, if they could not agree, by an umpire; and it was only after all this had been done, and according to the result of the assay, and the proportions of lead, silver, silica, and iron, thereby proved to be in the ore, that the price was to be ascertained and paid. During the time that must elapse between the delivery of the ore, and the ascertainment and payment of the price, the defendant had no security for its payment, except in the character and solvency of Billing and Eilers. The defendant, therefore, could not be compelled to accept the liability of any other person or corporation as a substitute for the liability of those with whom it had contracted.

"The fact that upon the dissolution of the firm of Billing and Eilers, and the transfer by Eilers to Bill-ling of this contract, together with the smelting works and business of the partnership, the defendant continued to deliver ore to a stranger, to whom Billing had undertaken, without the defendant's consent, to assign the contract. The change in a partnership by the coming in or the withdrawal of a partner might perhaps be held to be within the contemplation of the parties originally contracting; but however that may be, an assent to such a change in the one party cannot estop the other to deny the validity of a subsequent assignment of the whole contract to a stranger. The technical rule of law, recognized in Murray vs. Harway, 56 N. Y., 337, cited for the plaintiff, by which a lessee's express covenant not to assign has been held to be wholly determined by one assignment with the lessor's consent, has no application to this case.

"The cause of action set forth in the complaint is not for any failure to deliver ore to Billing before his assignment to the plaintiff (which might perhaps be an assignable chose in action), but it is for a refusal to deliver ore to the plaintiff since this assignment. Performance and readiness to perform by the plaintiff and its assignors, during the periods for which they respectively held the contract, is all that is alleged; there is no allegation that Billing is ready to pay for any ore delivered to the plaintiff. In short, the plaintiff undertakes to step into the shoes of Billing, and to substitute its liability for his. The defendant had a perfect right to decline to assent to this, and to refuse to recognize a party with whom it had never contracted, as entitled to demand further deliveries of ore."