Sec 847

A party, also, taking an order for the delivery of goods, takes it free from any equities existing between the original parties to the contract, whenever this was the understanding between such parties. And the rule applies to all securities or vouchers for a debt payable in money.6

Sec 848

When the assignee of an executory contract can perform the duty imposed by it as effectively as could the assignor, the fact that this duty is personal cannot be set up by defendant in a suit by the assignor on the contract.1 It is otherwise, however, when the duty, a condition precedent to the contract becoming effective, is one which can be performed only by the assignor, he declining to perform such duty.2 Contracts of partnership, also, are not assignable;3 and so of contracts to perform professional services.4

So as to orders for delivery of goods.

1 New Zealand Co. ex parte, L. R. 3 Ch. 154; see Colborne ex parte, L. R. 11 Eq. 478; Crouch V. Credit Foncier, L. R. 8 Q. B. 374; see Railroad Co. C. Howard, 7 Wall. 392, where this inference is doubted as a universal rule.

2 City Bank ex parte, L. R. 3 Ch. 758.

3 Financial Corporation's Claim, L. R. 3 Ch. 154, and see supra, sec 795-7.

4 Dickson V. Swansea R. R., L. R. 4 Q. B. 44; Higgs V. Tea Co., L. R. 4.

Ex. 387; Universal Life Asso. Co., L. R. 10 Eq. 458; Chorley ex parte, L. R. 11 Eq. 157; and other cases cited Pollock, 3d ed. 233. Mr. Pollock doubts whether Graham V. Johnson, 8 Eq. 30', and Athenaeum Ass. V. Pooley, 3 De G. & J. 294, can be reconciled with the above.

5 Crouch V. Credit Foncier, L. R. 8 Q. B. 374.

6 Merchant Bank V. Bessemer Steel ,Co., L. R. 5Ch. D. 205.

To a suit on assignment it is a defence that assignor failed to perform condition precedent.

1 British Waggon Co. V. Lea, L. R. 5 Q. B. D. 149; Roorbach V. North, 6 Johns. Ch. 469; Horner V. Wood, 23 X. Y. 350; Devlin V. Mayor, 63 N. Y. 8, 16; Parsons V. Woodward, 22 N. J. L. 196; Philadelphia V. Lockhardt, 73 Penn. St. 211.

2 See supra, sec 323.

In British Waggon Co. V. Lea, L. R. 5 Q. B. D. 149, Cockburn, C. J., giving the judgment of the court (Jan. 13, 1880), said: "We entirely concur in the principle on which the judgment in Robson V. Drummond, 2 B. & Ad. 303, rests, namely, that where a person contracts with another to do work and perform service, and it can be inferred that the person employed has been selected with regard to his individual skill, competency, or other personal qualification, the inability or unwillingness of the party so employed to 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 contract as at an end, notwithstanding that the person tendered to take the place of the contracting party may be equally well qualified to do the service. Personal performance is in such a case of the essence of the contract, which, consequently, cannot in its absence be enforced against an unwilling party. But the principle appears to us inapplicable in the present instance, inasmuch as we cannot suppose that in stipulating for the repair of these waggons by the company - a rough description of work which ordinary workmen conversant with the business would be perfectly able to execute - the defendant attached any importance to whether the repairs were done by the company, or by any one with whom the company might enter into a subsidiary contract to do the work."

3 Lind. on Partner. 492; Pearce V. Chamberlain, 2 Ves. Sen. 33; supra, sec 323.

4 Farren V. Wilson, L. R.4 C. P. 744; Hayes V. Willis, 4 Daly, 259, and cases cited supra, sec 323; see on this topic Mr. Moak's note to 24 Eng. Rep. 241.