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such a burden upon an agent? The rule seems to be
well settled by authority and good reason that, to en-
title a real estate agent to his commission in a sale or
exchange of lands, it is only necessary for him to fur-
nish a purchaser who is willing to purchase or exchange
upon the terms and conditions agreed to or proposed
by the seller. This would prima fade entitle the
agent to receive a commission. Where such a propo-
sition is not accepted by the owner of the land, then,
before an agent can recover his commission, he must
still further show that the purchaser he has found is
willing and able to purchase or exchange upon the
terms offered by (he owner of the land. Hamlin v.
Schulte, 27 N. W. Eep. 303; Stewart v. Murray, 92 Ind.
543; Moses v. Bierlin^. 2t K. T. 462; Mooney v. Elder,



56 N. T. 238; Gillett v. Clorum, 7 Kan. 156; Short v.
Millard, 68 111. 208; McOavock v. Woodlief, 20 How.
221; Gireman v. Meade, 13 Bush, 358; Bedfield v. Tegg,,
38 N. Y. 212; Rees v. Spruance,45 III. 308; Potvin v.
Curran, 13 Neb. 303, 14 N. W. Rep. 400; Montgomery
Emigrant Co., 47 Iowa, 01; Fraser v. Wyckofl, 63 N»
Y. 445; Everhart v. Searle, 71 Pa. St. 256; Flsk v. He-
naire, 9 Pac. Rep. 322. But where they are brought
together in person or by correspondence, and the pur-
chaser is accepted and the exchange is authorized, the
principal at the time being in the possession of all the
knowledge and facts known to the agent, and the
whole transaction on the part of the agent is done in
good faith, so far as the agent is concerned the trans-
action is completed, and he has fully earned his com-
mission, although afterwards it may turn out that
there is a defect in the title and quality or condition of
the land. In this case Halsey accepted the trade, di-
rected the exchange of papers with a full knowledge
of all the facts possessed by Lockwood, and, applyin^^
the rule established by the authorities to these facts^
we must conclude that the court erred in overruling
the demurrer to the plaintiff's evidence, as the evi-
dence offered by the plaintiff discloses no cause of ac-
tion.



Concerning the liability of railroad com-
panies for injuries to trespassers on their
tracks, the Supreme Court of Missouri says,
in Barker v. Hannibal & St. J. Ry. Co., It
S. W. Rep. 254, a case where deceased, a tres-
passer, knowing that a train was due from
behind him, but did not look in that direction ,^
the train having given no signal, though the
engineer could have seen plaintiff at a dis-
tance of nearly 200 yards :

Barker knew the train was due when he got upon
the track. There was a tie train standing on the
Wabash track at the time, and it seems probable that
his attention was attracted to the men at work on the
train. He was a little hard of hearing, but could hear
ordinary conversations. The evidence tends to show
that no signal was given by sounding a whistie or
ringinsc a bell, and that the train, if on a level tracks
could have been stopped in a distance of 100 yards.
It does not appear within what distance it could have
been stopped on this down grade. There can be ne
doubt but Barker was guilty of negligence in going
upon the track, at a time when he knew the train was
due, without looking or listening for it. Besides this,
he got upon the track at a place other than a crossing^
and was making a foot-path out of the railroad track,
and that, too, at a place where the defendant was re-
quired to and had fenced its road. In short, he was a
trespasser, declared to be such by the statute law of
this State. Section 809, Bev. St. 1879. Being a tres-
passer, the company owed him no duty, except not to
wantonly, willfully, or with gross negligence injure
him. The company was not in duty bound to look out
for him. Maher v. Railroad Co., 64 Mo. 267; Hallihan
V. Railroad Co., 71 Mo. 114; Maloy v. Railroad Co., 84
Mo. 270; Rine v. Railroad Co., 88 Mo. 892: Williams v.
Railroad Co., 9 S. W. Rep. 678; Langan v. Railroad
Co., 72 Mo. 894; Gomly v. Railroad Co., 12 AU. Rep.
496. Some of the authorities Just cited and many
others show that though a person is a trespasser on a
railroad track, still, if such person is In a dangerous
position to the knowledge of the servants of the rail*



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road company, then it becomes their duty to use all
reasonable efforts within their power and at their
command to avoid injuring such person thus in the
wrong. Shear. & R. Neg. % 36. But this duty on the
part of the defendant's servants only arises when and
after the perilous position of the person is discovered.
Now, in this case, there is no evidence whatever of a
wanton or willful Injury; nor is there any evidence
tending to show that the engineer saw the deceased on
the track in time to have avoided the calamity. The
fact that no signal was given tends to show that the
deceased was not seen by the engineer, in the absence
of any other evidence. But the argument is made on
behalf of the plaintiff that if the engineer was at his
post of duty, and on the lookout, he could have seen
the deceased, and if he was not, then he was guilty of
negligence. The answer to all this is that the company
owed the deceased no duty to be on the watch for him.
As to passengers, it was of course the duty of the en-
gineer to see that he had a clear track, but the defend-
ant owed no such a duty to the deceased. As to him
there was no breach of duty for a simple failure to
discover him in the commission of a trespass. As
stated by a reliable text- writer, the general duty of a
railroad company to run its trains with care becomes a
particular duty to no one until he is in a position to
have a right to complain of neglect. Cooley, Torts,
660. Ray, C. J. & Barclay, J., dissent.



The power of a court of chancery to enjoin
the governor of a State from issuing a certifi-
cate of election to congress to an applicant,
and to compel him to deliver a certificate al-
ready issued to complainant, was denied by
the Supreme Court of Tennessee in Bates v.
Taylor, 11 S. W. Rep. 266. It was held that
the issuance of such commission or certificate,
whether called a ministerial or an executive
duty, is an official action, whose performance
can be neither coerced nor restrained by the
courts. The court says :

An attempt on the part of the courts to control his
action under the statute would be an invasion by one
department of the government of the rights of another
department, and, for that reason, a violation of the
constitution. It is well settled by all the authorities
that mandamus will not lie to compel the governor of
a State to perform duties of a purely executive or
political nature, involving the exercise of official Judg-
ment and discretion, but the decisions are wide apart
as to the power of the courts to compel him to dis-
charge those duties which, as to other officials, are
called ministerial. The courts of Ohio, Alabama, Cal-
ifornia, Maryland, and North Carolina are together in
holding that the governor may be required by man^
damns to perform duties of the latter class, while the
courts of Arkansas, Georgia, Illinois, Louisiana, Maine,
Minnesota, Missouri, New Jersey, and Rhode Island
have uniformUy held the contrary, upon the ground
that the powers of goverment in the States are distrib-
uted among three deparmenis, which under the organic
law are to be and remain independent of each other.
High, Extr. Rem. SS 118-121. This author cites the
cases from the different States mentioned. We have
examined them, and also a very Instructive case from
Michigan (Sutherland v. Governor, 29 Mich. d2L),
which is in accord with those from the States last men-
tioned, and we are fully persuaded not only that the



weight of authority, but also the weight of reason, is
against the power of the courts to coerce the chief
executive of a State into the performance of any official
ddty. • * • We do not think the decisions of the
Supreme Court of the United States stand in the way
of the conclusion we have reached, though the federal
courts have, in several instances, taken jurisdiction of
proceedings against the governors of certain States,
and put them under restraint by injunction. Davis
V. Gray, 16 Wall. 208; Rolston v. Commissioners, 120
U. S. d91. Now the most that can be said of these cases
is that they show the jurisdiction of the federal courts
to restrain the governor of a State from doing a wrong-
ful act to the injury of individual rights. It is not even
intimated in any one of them that the State courts have
any such jurisdiction. There is a wide difference be-
tween the relation of the federal judiciary and the
State judiciary to the governor of the State, and be-
cause of that difference the federal decisions referred
to are not at all in point in this case. A State's judi-
ciary sustains the same relation to its governor that
the federal judiciary does to the president of the United
States; and as a State court, by reason of that relation,
has no jurisdiction to coerce or restrain the governor
with respect to his official duties, so the federal courts,
for the same reason, have no power to interfere with
the official acts of the president. State v. Johnson, 4
Wall. 499.



The validity of a deed of land to a cor-
poration not in existence, was considered by
the Supreme Court of West Virginiain Spring
Grarden Bank v. Hulings Lumber Co., 9 S. E.
Rep. 243. There, after the corporators had
signed an agreement to become a corporation
and before the charter was obtained, a deed
conveying land to such corporation was signed,
acknowledged and delivered to a third party,
with directions to retain it until the corpora-
tion was organized. It was held that the deed
operated as a valid conveyance to the cor-
poration. The court says :

The important question, however, in this cause, is
whether or not the aforesad deed from Marcus Hul-
ings and wife to the Hulings Lumber Company is void
and ineffectual for the want of a grantee. It is ad-
mitted that a grant in prcesenti to a person not in esse
at the time the deed is delivered would be inopera-
tive; and, likewise, a deed to a corporation never
created or organized would be void. Hulick v. Scovil»
4 Gilman, 191; Harriman v. Southam, 16 Ind. 190;
Russell V. Topping, 5 Mad. 202. These cases and
others of the same character fully sustain the doctrine
that a deed to a corporation not in existence, or to one
incapable by its charter of holding real estate, or to a.
person not tn esse at the time of the delivery of the
deed, is void; but I have been unable to find any case
in which it has been decided that a deed made to a.
corporation having a potential existence at the date of
the deed, and which had obtained its charter and com-
pleted its organization at the time the deed was deliv-
ered to it, was void or ineffectual as a conveyance to
the corporation. On the contrary, in Wharf Co. v.
Judd, 108 Mass. 224, the court held that a deed con-
veying land to a corporation, dated after the date of
its charter and before its organization, was a valid
conveyance. Bank v. Beliis, 10 Cush. 276; Ward v.
Lewis, 4 Pick. 518; Bank v. Dandridge, 12 Wheat. 64.



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THE CENTRAL LAW JOURNAL.



No. 21



THE ASSIGNABILITY OF PERSONAL
CONTRACTS.



The question of the right of the assignee of
a contract to demand and enforce the per-
formance to himself of the covenants and
conditions which the other party to the con-
tract originally made with the assignor, is one
of no little importance and difficulty.

The general principle is well settled that
^^every one has a right to select and deter-
mine with whom he will contract, and cannot
have another person thrust upon him without
his consent. In 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 con-
tract' '' 1

Well settled as this principle is, however,
the courts have experienced great difficulty
in determining the class of cases to which it
is properly to be applied, for, notwithstanding
the rule of the common law— of which the
principle above referred to is but another
form of statement — that choses in action are
not assignable,^ the tendency of courts of law
and legislatures in modern times, following
the lead of the courts of equity, has been to
remove the disabilities which limited the free
assignment and enforcement of contracts.^

Mr. Justice Gray, of the Supreme Court
of the United States, in a recent case,^ from
which the foregoing statement of the principle
was selected, has divided the cases which in-
volve the topic under discussion into four
classes, as follows :

''First. Cases of agreements to sell and
deliver goods for a fixed price, payable in
cash on delivery, in which the owner would
receive the price at the time of parting with
his property, nothing further would remain
to be done by the purchaser, and the rights
of the seller could not be affected by the
question whether the price wjis paid by the
person with whom he originally contracted, or
by an assignee.^

1 Mr. Justice Gray in Arkaneas Smelting Co. v.
Belden Mining Co. 127 U. S. 379, citing Humble v.
Hunter, 12 Q. B. 810, 317; Winchester v. Howard, 97
Mass. 303, 305, s. c, 93 Am. Dec. 93; Boston Ice Co. v.
Potter, 128 Mass. 28,8.0., 25 Am. Rep. 9; King v.
Batterson, 18 R. I. 117, 120, s. c, 48 Am. Rep. 13;
Lansden v. McCarthy, 45 Mo. 106.

« Coke Lit. 266a.

» See 1 Parsons Cont. 224-226.

4 Arkansas Smelting Co. y. Belden Mining Co. 127
U. 8. 879.



''Second. Cases upon the question how far
executors succeed to rights and liabilities
under a contract of their testator.^

' 'Third. Cases of assignment by contractors
for public works, in which the contracts, and
the statutes under which they were made,
were held to permit all persons to bid for the
contracts, and to execute them through third
persons.^

''Fourth. Other cases of contracts assigned
by the party who was to do certain work —
not by the party who was to pay for it — and
in which the question was whether the work
was of such a nature that it was intended to
be performed by the original contractor
only." 8

To these may be added two other classes
of cases, resting upon analogous principles,
and involving :

Fifth. The right of an undisclosed prin-
cipal to enforce performance of contracts
made with his agent as the ostensible prin-
cipal.®

Sixth. The right of one, who has con-
tracted as an agent, to enforce performance
of the contract to himself as being, in fact,
the principal.'^

The questions arising under the fifth and
sixth subdivisions have been considered in a
recent work on Agency^ and will not be dis-
cussed in this paper. The second and third
classes of cases will also be omitted, and an
attempt will be here made to throw some

s Citing Sears v. Conover, 8 Eeyes, 118, and 4 Abbott
N. Y. App. 179; Tyler v. Barrows, 6 Bobt. (N. Y.) 104.

« Citinj^ Hambly V. Trott. Cowp, 371,875; Wentworth
V. Cock, 10 Ad. & El. 42, and 2 Per. & Dav. 251; Wil-
liams on Executors (7th ed.) 1728-1725, "Assignment
by operation of law" proceeds the learned Judge,
**as in the case of an executor, is quite different from
assignment by act of the party; and the one might be
held to have been in the contemplation of the parties
to this contract although the other was not. A lease,
for instance, even if containing an express covenant
against assignment by the h ssee, passes to his execu-
tor. And It is by no means clear that an executor
would be bound to perform, or would be entitled to
the benefit of, such a contract as that now in question,
Dickinson v. Calahan, 19 Penn. St. 227."

7 Citing Taylor v. Palmer, 81 Cal. 240, 247; St. Louis
V. Clemens, 42 Mo. 69; Philadelphia v. Lockhardt, 78
Penn. St. 211; Devlin v. New York, 68 N. Y. 8. This
case contains a full discussion of the general question.

8 Citing Robson v. Drummond, 2 B. & Ad. 808;
British Wagon Co. v. Lea, 5 Q. B. Div. 149, s. c, 29
Eng. Rep. (Moak.) 286; Parsons v. Woodward, 2 Zabr.
(N. J.) 196.

» See Mechem on Agency, ii 769-774.

10 See Id. § 760.

" Mechem on Agency, ubi supra.



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459



light upon the questions inyolved in eases of
the first and fourth classes. The writer deems
that this can best be done by a brief review
of the oases — not numerous — falling under
these respective classes.

1. Contracts which are not Assignable, —
Robson V. Drummond,^ is one of the oldest
and leading cases upon this subject. In this
case a carriage had been hired by the de-
fendant of one Sharpe, a coachmaker, for five
years, at a yearly rent payable in advance,
Sharpe agreeing to keep the carriage in repair
and to paint it once a year. Robson was
then a partner in business with Sharpe, but
the defendant did not know it. After three
years Sharpe retired, making over all inter-
ests in the business and property in the goods
to Robson, who brought an action to enforce
defendant's performance of the contract. It
was held, however, that he had no right of
action. Lord Tenterden basing his judgment
on the ground that *^the defendant might
have been induced to enter into the contract
by reason of the personal confidence which
he reposed in Sharpe, and therefore might
have agreed to pay money in advance, for
which reason the defendant had a right to
object to its being performed by any other
person." Littledale and Parke, JJ., put
their judgment also upon the additional
ground that the defendant had a right to the
personal services of Sharpe, and to the ben-
efit of his judgment and taste, to the end of
tbe contract.

The principle upon which this case rests
was said by Cockburn, C. J., in a later case,*^
to be ''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 indi-
vidual 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 con-
tract as at an end, notwithstanding that the
person tendered to take the place of the con-
tracting party may be equally well qualified
to do the service. Personal performance is,

IS 2 B. & Ad. 803.

13 British Wagon Co. t. Lea, 5 Q. B. Div. U9, 29
Eng. Rep. 236.



in such a case, of the essence of the contract,
which, consequently, cannot in its absence
be enforced against an unwilling party."
But the same judge expressed the opinion
that, in the case referred to, the principle
had been pushed ^'to the utmost length to
which it can be carried, as it is difiSoult to see
how in repairing a carriage when necessary^
or painting it once a year, preference would
be given to one coachmaker over another."

Humble v. Hunter*^ followed and approved
Robson V. Drummond. There Humble and
Hunter had entered into a charter-party, the
former describing himself as the owner of the
ship. Humble' s mother brought an action
upon the agreement and offered to show that
she was in fact the owner and that the son
was but her agent in the transaction, but the
court held that as the defendant had con-
tracted with the son expressly as being the
owner of the ship, he could not be held to
answer to another.

Boulton V. Jones,^^ furnishes another illus-
tration of the same principle. There the de-
fendants, who had been in the habit of deal-
ing with B, sent a written order for goods
directed to B. The plaintiff, who on the
same day had bought B's business, filled the
order without giving the defendants any
notice that the goods were not supplied by B.
Qpon the plaintiff's rendering his account, to
defendants, they disclaimed any transactions
with him and he brought an action for the
price of the goods, but was held not to be
entitled to recover. Martin, B, said: ^^This
is not a case of principal and agent. If
there was any contract at all, it was not with
the plaintiff. If a man goes to a shop and
makes a contract intending it to be with one
particular person, no other person can con-
vert that into a contract with him."

Lansden v. McCarthy ,^^ is to the same ef-
fect. There defendant had entered into a
contract with B & E, to supply their hotel
with meat for the period of one year at a cer-
tain rate per pound, payment to be made at
the expiration of each month for the meat
furnished during that month. During the
year B & E sold out to plaintiff, and assigned
to him their meat contract with defendant.
Plaintiff notified defendant of the assignment

w 12 Q. B. 810, (12 Ad. & El. N. S.)

15 2 Hurl. & Nor. 664.

i« 45 Mo. 106, citing Robson v. Drummond, supra.



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No. 21



and demanded the further performance of
the contract to himself, offering upon his part
to perform all of the covenants of his as-
signors. The defendant refused to continue
to furnish the meat and the plaintiff brought
an action against him, but was not permitted
to recover. ''The defendant," said the court,
''may have been willing to deliver his meats
in advance of payment by reason of the con-
fidence he reposed in the credit and solvency
of the parties with whom he originally con-
tracted. The readiness and offer of the
plaintiffs to pledge themselves to a faithful
performance of the stipulations of the con-
tract obligatory upon their assignors, is not
to the purpose. It does not meet the ex-
igency of the case. The question presented
was one of personal trust and confidence,
which it was the right of the defendant to
decide for himself."

Boston Ice Co. v. Potter," furnishes an-
other illustration. Here the defendant had
made a contract with the Citizens' Ice Co. to
supply him with ice. Without his knowledge,
the Citizens' Ice Co. sold its business to the
plaintiff with the privilege of supplying ice to
all its customers, and the plaintiff furnished
ice to the defendant's house for more than a
year before he was notified of the change.
Defendant had formerly purchased ice of the
plaintiff company, but had been dissatisfied
with its performance and had terminated his
contract with the plaintiff at the time of
making the contract with the Citizens' Ice
Co. Plaintiff sued to recover for the ice so
furnished, but it was held that it had no cause
of action. Endicott, J., said: "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. It may
be of importance to him who performs the
contract, as when he contracts with another
to paint a picture, or write a book, or furnish
articles of a particular kind, or when he re-
lies upon the character or quality of an indi-
vidual, or has, as in this case, reasons why
he does not wish to deal with a particular
party. In all these cases, as he may contract
with whom he pleases, the sufficiency of his
reasons for so doing cannot be inquired into.
If the defendaot, before receiving the ice, or
during its delivery, had received notice of the
change, and that the Citizens' Ice Company

17 128 Mass. 28, 25 Am. Rep. 9.



could no longer perform its contract with
him, it would then have been his undoubted
right to have rescinded the contract and to de-
cline to have it executed by the plaintiff. But
this he was unable to do, because the plaintiff
failed to inform him of that which he had a
right to know.^^ If he had received notice
and continued to take the ice as delivered, a
contract would be implied." ^

King V. Batterson^ is to the same effect.
There Batterson had guaranteed the payment
by one Haley for such goods as the latter
should procure of Horton, for use upon a
certain undertaking. King furnished the
goods, instead of Horton, and sued Batterson
upon his guaranty of payment, but it was
held that neither as an assignee nor as an
undisclosed principal could he maintain the
action. Potter, J., said: "When a contract
is for the purchase of goods, and the quality
and quantity of the goods and the price are
defined, no injury might result, and in such
cases it might be within the contemplation of
the parties that the work, e. g., repairing
wagons, should be, or from the known situa-



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