The record-union., 1895-12-28
COULD NOT ASSIGN His CONTRACT.
At Least, the Assignees Cannot Main
tain an Action.
Points on Which Judge johnson De-
cides for the City in the w. E.
Henry Water Case.

Superior Judge Johnson decides that
w. E. Henry, the assignee of J. H.
Henry and Augustus Abbott, to whom
A L. Fish assigned his contract with
the city to provide the latter with clear
and pure water, cannot maintain an
action for damages against the munich
pality for breach of that contract.
The decision was rendered yesterday,
and while it does not go to the merits
of the case, it appears to be conclusive
enough so far as J. II. or w. E. Henry
are concerned. In effect Judge Johnson
holds that under the contract made by
the city with A. L. Fish the latter's as
signees have no right to claim dam
ages. The court does not say whether
or not Fish himself might not have
good cause of action aginst the city, as
that point is not involved
Courts rarely go out of their way, in
rendering decisions, to decide points
that would have no bearing on cases
at issue. In this instance the real ques-
tion of the city's liability to someone
has not been met, but so long as it is
not in issue the city need not concern
itself. If Fish himself should see fit to
sue, it will then be time enough to con-
slider the matter of the citys liability
to him
After stating the title of the Henry
case, Judge Johnson says in render
ing his decision:
In the year 1893 the city of Sacra-
mento by its legally constituted author
1ty took certain steps for the purpose
of obtaining new and sufficient guam
tity of pure drinking water for the use
of its inhabitants, and to that end, on
the Sth of August of that year passed
and adopted a certain ordinance known
as ordinance 31S, submitting to the
voters of the city the question whether
1t should adopt the new supply, and
whether it should enter into a contract
with one A. L. Fish for that purpose.
may say here that the city, by regular
ordinance in June of the same year
invited proposals for supplying the city
with water, and that the bid of A. L.
Fish was the lowest and best and was
accepted by its Board of Trustees, and
the question was to be submitted to the
voters of the city whether a contract
should be entered into or not That on
the 18th day of August, 1893, the vot-
ers, by the required majority, voted in
favor of the proposition. Pursuant to
these matters, on the 11th of September.
1893, the city and said Fish entered into
a written contract for the purpose of
carrying out the provisions of the or
dlnance named and the conditions of
the bid of A. L. Fish. In March, 1894
Fish assigns his contract to ]. H. Henry
and A. Abbott, who, in turn, on the 9th
day of November 1894, transfers the
same to w. E. Henry, the plaintif.
Plaintiff alleges that the defendant
refuse to permit him to put in water
pipes and such other things as is neces-
sary for him to do in order to carry out
his part of the contract, and refuse to
carry out any Of its provisions of its
contract and brings this action for the
sum of $563. .2S5 35 as damages.
Th defendant demurs to this com
plant first, upon the general ground
that the complaint does not state facts
sufficient to constitute a cause Of ac-
ton; second, that the contract set out
in said complaint could not and cannot
be assigned but was personal in its
nature, and the pretended assignment
thereof as stated in the complaint did
not convey to or vest in plaintiff any in
terest in or to said contract, and plaint-
iff had no right to sue or recover from
defendant any moneys or other things
for any breach thereof; and. third.
that it does not appear by and from
said alleged contract as set out in said
complaint that no contract was closed
or completed between said Fish and de-
fendant, but that all negotiations be-
tween said Fish and this defendant
We're closed and ended without COM
pleting said or any contract"
The second and third causes of de-
murrer are included within the first.
e. and are but portions of the general de-
murrer
The first question to be considered is
whether the contract is assignable or
not. At common law no contract was
assignable. 1t is not to be understood
that contracts could not be assigned by
consent Of all parties. This may be
done, but when such is perfected new
principle enters into it. and is called a
novation of contract; that is, new con-
tract arises between the parties to the
contract
In this case there is no such principle
involved, as defendant in no way as
sented to any Of the assignments set out
i2 the complaint. Courts of equity.
however, viii permit the assignment of
chooses in action. Also, anything which
may directly or indirectly involve the
right of property is assignable. The
courts, however, have always held that
the rights and liabilities under an exc
cutory contract for personal services or
contract otherwise involving personal
trust, credit or confidence cannot be as
signed CLARK on Contracts, page $50
and authorities there cited)
tho ooe-a Of I'll, ,,e-,, r. |, -
ing Company VS.. Belden Mining Com
pany. 121 United States Reports. 127,
the Supreme Court of the United States
used this language, quoting from Pol
lock on Contracts, Fourth Edition, 425:
Rights arising out of contracts 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 actu-
ally confded.' There is a long line of
decisions that uphold this view CHum-
bic VS.. Hunter, II Q. s.. 310-317; Win
chester vs.. Howard, 81 Mass, BOB: Bos-
ton Ice Company VS.. Potter, 123 Mass.
2S; King vs.. Patterson, Is r. T., 117-120:
Landsden vs. Mccarthy, 40 Mo-, 106.
There can be no question that this is
contract that comes within the rule
Ihe city had the right to the benefit
they anticipated from the character
ana credit of Fish with whom il made
the contract. Fish in the first instance,
IN response TO defendants advertise
ment Tor bids, was accepted by the
Board OF Trustees as being the lowest
ana best bidder" Thereupon was sub