payment. On September 1st B assigns the claim to C for $1,000 C, however, acquires a right to enforce collection of but $700. He acquires only B's interest. On September 5th A pays B $200. There having been no notice given to A, C can now collect but $500 from A. However, C would have a claim against B for partial failure of subject matter.

62. What Cannot Be Assigned. A contract, the subject matter of which is personal services, cannot be assigned. A agreed to paint a portrait of B. He cannot assign this contract to C.

63. Liability of Assignor. The assignor of a contract or right impliedly guarantees that the claim is good; that he has a good title; that the debtor is competent to contract; and that he has the right to assign.

64. RECAPITULATION

A third person who interferes with the operation of a contract is liable in damages to the party injured.

A contract is assigned when the right of one of the parties to it has been transferred to one who has hitherto been a stranger to the agree

ment.

Assignment may be made (1) by act of the parties, or (2) by operation

of law.

The assignee in general takes these rights subject to all equities and defenses that may have been set up between the original parties.

65. QUESTIONS

Define assignment. Distinguish between assignment by agreement and assignment by operation of law. What are the rights of the assignee? What cannot be assigned? What is the liability or undertaking of the assignor?

66. DECISIONS BY THE COURTS

1. In B Ice Co. v. P, 123 Mass. 28, the plaintiff had furnished ice to the defendant, but because of dissatisfaction the defendant had terminated the contract and had entered into an agreement with C Ice Co. to supply him. The latter company sold out to the former company, which again resumed the delivery of ice to the defendant without giving him notice. It was held that a party has a right to select and determine with whom he will contract and cannot have another person thrust upon him without

his consent, and that as there was no privity of contract established between the plaintiff and defendant, without such privity, the possession and use of the property will not support an implied contract to pay for it. 2. In C v. R, 15 Mass. 387, R was sued by the assignee of a note held not negotiable on account of a contingency upon which payment was made to depend. It was held that the assignee of such a common law chose in action could not maintain an action upon it in his own name.

3. In V v. H Ins. Co., 14 Conn. 141, the plaintiff brought suit by attachment against one M, attaching a debt claimed to be due to him from the defendant upon a policy of insurance. The defendant company resisted payment on the ground of an assignment of the policy to X. It was found that no notice of the assignment had been given to the defendant until long after the attachment. The defense was held not to prevail, and the rule laid down that in order to perfect an assignment of a chose in action, as against bona fide creditors and purchasers without notice, notice of such assignment must be given to the debtor within a reasonable time; and, unless such notice is given, creditors may attach and acquire a valid lien, and others may purchase the debt and gain a title superior to that of the first assignee.

4. In A v. B, 127 U. S. 379, the plaintiff was the assignee of a contract for the delivery of ore in 100-ton lots for smelting. The price to be paid for the ore was to be ascertained by an assay to be made after delivery.. From delivery until the price was thus ascertained and paid the defendant had no security for payment except in the character and solvency of those who received the ore. The court held that such a contract is not assignable, quoting the familiar phrase of Lord Denman, "You have the right to the benefit you anticipate from the character, credit, and substance of the party with whom you contract," and distinguishing the contract from a simple agreement to pay money, or to deliver goods, which is assignable.

AMBORILIAD

SIR WILLIAM BLACKSTONE (1723-1780)

An English jurist, educated at Pembroke College, Oxford. Having made a choice of the law, he was entered in the Middle Temple in 1741, and called to the bar in 1746. He is the author of Blackstone's Commentaries, an exposition of the common law. This treatise is written as four books (published in two volumes), dealing respectively with rights of persons and things, and public and private wrongs. He was by no means great jurist and his writings are not accepted by lawyers as of great legal weight, but they have rendered much the same service to educated society of England that the Institutes did to Rome and the students of the civil law.

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67. Introduction. Under previous sections we discussed, first, the manner of forming a contract and the elements that are essential; and, second, the operation of the contract, those whom it affected, and those who might acquire rights or assume liabilities under it. We are now to discuss the rules that are followed in explaining the meaning of the contract-how we prove the contract and determine what it means. This section will be dealt with under two heads: (1) proof of contract; and (2) construction of contract.

68. Proof of Contract. 1. Oral. When the contract is formed orally, the terms of the contract can only be established