survives to the personal representatives of the owner, is assignable under the statutes.79 The right and duty to render personal service, however, may not be assigned.80 The right of action for a tort is not generally assignable, except such actions for torts as survive to the personal representatives.81 The assignment may be conditional or for security. Notice to the debtor is not necessary as between the parties to the assignment, but should be given by the assignee if he wishes to protect himself from subsequent assignments by the assignor, or from payment being made to the assignor by the debtor.82 The assignee takes subject to equities in favor of the debtor at the time of the assignment.83

140. Assignment by operation of law.-Independent of the acts of parties, rights and liabilities in contract may be transferred from one person to another. Rights arising from contract are transferred by operation of law to others in the case of interests in realty which run with the land, and when by the death or bankruptcy of a party his representatives acquire his rights and liabilities for certain purposes. Thus, agreements or covenants in a lease which "touch and concern the thing demised," as to repair, pass to the assignee of the lessee, whether or not expressed to have been made with the lessee and assigns.84

79 Chapin v. Longworth, 31 Ohio St. 421; Palo Pinto Co. v. Gano, 60 Tex. 249.

80 Hayes v. Willio, 4 Daly 259 (N. Y. C. P.), LEADING ILLUSTRATIVE CASES. 81 Stewart v. H. & T. C. Railway Co., 62 Tex. 246.

82 Fraley's Appeal, 76 Pa. St. 42.

83 Spinning v. Sullivan, 48 Mich. 5; Kleeman v. Frisbie, 63 Ill. 482. Leppla v. Mackey, 31 Minn. 75.

The death of a party passes to his personal representative all his personal estate, all rights in action affecting it, and all liabilities chargeable upon it. Covenants affecting freehold pass to the heir or devisee of the realty. The exception to this rule is that contracts of personal service expire with either of the parties to them, and performance of contracts which depend upon personal skill or service may not be demanded of the personal representative. Nor does a breach of a contract which involves a purely personal loss, as a breach of promise to marry, give a right of action to the executors.85

The assignee of a bankrupt is appointed for the purpose of collecting the assets and settling the liabilities of the estate. The same principles which apply to personal representatives apply largely to him.

85 Chamberlain v. Williamson, 2 M. & S. 408 (Eng.).

CHAPTER XI.

JOINT CONTRACTS JOINT AND SEVERAL CONTRACTS -SEVERAL CONTRACTS.

141. Classification.-A contract may have more than one person on each side, to-wit, there may be more than one promisor or promisee. Thus: (1) A may make an agreement with B; (2) A may contract with B and C, or more persons; (3) A and X (or more) may contract with B alone; (4) A and X (or more) may contract with B and C (or more). The problem is to determine the respective rights and obligations of A, B, C, and X.

The first case is the normal case of one promisor and one promisee and does not concern this inquiry. The second case has one promisor and two promisees. The third situation contains two promisors and one promisee; and the fourth possesses two promisors and two promisees.

142. Promisors and promisees.-Promisors may be joint, or joint and several, or several. At common law, whenever an obligation was undertaken by two or more promisors, as in (2), the obligation was joint.80 Thus, where a note is executed by A, B, and C in these terms: "We promise to pay," the obligation is joint. To create a joint and several obligation, or a several obligation, at common law there must be words of severance. Thus, if A, B, and C signed

86 Alpaugh v. Wood, 53 N. J. L. 638.

this note instead of the above: "I promise to pay," the note would be joint and several.

If the language of the contract is ambiguous, the court will consider the nature of the agreement and who received the consideration to determine whether the obligation of the promisors is joint or otherwise. But statutes have modified these rules so that the presumption is that contracts having more than one promisor shall be joint and several unless there is an express intention that they shall be joint.87

88

Promisees may only be joint or several. They may not be joint and several. If the language of the promise is at all open to construction, and the interest of the promisees is joint the right of action is joint. But if the interest is construed to be several, the right of action is several.

143. Joint contracts. In a joint obligation, there is but one cause of action against the promisors. Where A, B and C are jointly liable to X, the latter must sue A, B and C in one and the same action. If A dies, the liability survives to B and C.89 At common law, A's estate would not be liable to such a joint obligation. This is the doctrine of survivorship, but it has been modified by statutes in many states, whereby the deceased obligor's estate is made liable."" But in any case, the estate of the last survivor is liable to the promisee."1

87 Stimson, American Statute Law, § 4113.

88 Anson, Contracts (Huffcut's 2d ed.), § 329.

89 Sundberg v. Goar, 92 Minn. 143; Anson, Contracts (Huffcut's 2d ed.), §§ 324, 325, 326.

90 Stimson, American Statute Law, §§ 4113 and 5015.

91 Neal's Exrs. v. Gilmore, 79 Pa. St. 421.

If a judgment is obtained against one joint obligor, it bars an action against another or against all jointly, except where one obligor was outside the jurisdiction when the original suit was filed. These rulings have also been changed by statutes.

92

At common law, if X releases A, the result in a joint obligation is to release A, B and C. A voluntary release of one joint obligor is a release of all.93 To avoid this effect, it is customary where X desires to release A but not B and C to execute what is known as a contract or covenant not to sue A. Thus, X promises A, for a consideration, not to sue him. This does not act as a technical release, but it is effective. Thereby X sues all of the parties but must refrain from seizing A's goods, or render himself liable in damages on his contract not to sue. 94 Wherever possible the courts will treat a release as a covenant not to sue.95 Moreover, statutory enactments provide in some states that a release of one will not release all of the joint obligors. In the event one of the joint parties pays the entire obligation, he is entitled to contribution from the others.96

The rules so far discussed in this section apply to joint promisors. Turning to a consideration of the characteristics of joint promisees, the law requires that all surviving joint promisees join in the action.97 If one dies, the right of action is in the survivors,

92 Mason v. Eldred, 6 Wall. 231 (U. S.); Cox v. Maddux, 72 Ind. 206. 93 Hale v. Spaulding, 145 Mass. 482.

94 Parmelee v. Lawrence, 44 Ill. 405.

95 Owen v. Homan, 4 H. L. Gas. 997 (Eng.).

96 Anson, Contracts (Huffcut's 2d ed.), § 326.

97 Sweigart v. Berk, 8 Serg. & R. 308 (Pa.).