
    Solomon Chapin v. William N. Longworth.
    1. An executory contract for personal services, to be paid for as performed, can not be assigned by the employer, unless the employe assents to the substitution of the assignee as employer.
    2. In an action by the employe against the employer and his assignee, the allegation that subsequent to the agreement of the employer to assign, the emploj'e rendered the same service for the assignee during part of the time embraced by the contract, and received compensation from him at the rate therein specified, does not show such substitution.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Van Wert county.
    Chapin commenced an action in the court of common pleas of Yan Wert county, against Longworth and Doran, Deniston & Bros., but dismissed as to the firm without prejudice. The petition is in substance as follows: May, 4, 1872, Chapiu and Doran, Deniston & Bros, entered into a contract in writing, under seal, whereby Chapin agreed that the firm should have the use and control of the patterns and models for a lathe he had invented, and the right to manufacture the lathe for its own use, in its factory, but not to sell to others; that he would not make or sell the lathes, nor would he permit others to make or sell them; and that the firm should have the right to secure letters patent for the lathe so invented by him. In consideration of this, the firm agreed to employ Chapin five years, at two dollars and fifty cents a day, payable weekly, to work in the factory and keep the lathes in order; and it stipulated that whenever it failed to pay him such wages, it should forfeit the patterns, models, and the right to •manufacture the lathes. Prior to March 17, 1873, the firm had put up, and was operating in its factory, six of the lathes. On that day it sold its turning factory to Longworth, who, in consideration of the assignment to him of its right and interest in the contract with Chapin, and its transfer to him of the lathes, patterns and models, with the same right to manufacture, etc., that had been granted to the firm, promised, and agreed, to and with the firm, that he would perform the above-mentioned contract, covenants, and agreements which it had undertaken to perform. Thereafter, Longworth operated the factory and paid Chapin, in accordance with the terms of the contract above mentioned, until February 7, 1874. Between that day and August 22, 1874, Longworth operated the factory one hundred and thirty-two days, on each of which Chapin attended and tendered service, in accordance with the terms of his contract with the firm; and he says, accordingly, that he is entitled to $330; that Longworth retains the lathes, patterns, and models, but has not paid to him the sum of money so due, or any part thereof; and that, by reason of the premises, a cause'of action has accrued in his favor to recover that amount, with interest, from the firm and Longworth.
    A final judgment of the court of common pleas sustaining the demurrer of Longworth to the petition, was affirmed in the district court, and leave is asked to file in this court a petition in error to reverse those judgments.
    
      W. J. Beers, for plaintiff in error:
    The petition presents a case within the principle that whei’e one person, upon a sufficient consideration, makes a promise to another for the benefit of a third person, such third person may maintain an action on the promise. Crumbaugh v. Kugler, 3 Ohio St, 549; Thompson v. Thompson, 4 Ohio St. 333; Bagley v. Waters, 7 Ohio St. 359 ; Miller v. Mover, 15 Ohio St. 378; Trimble v. Strother, 25 Ohio St. 378 ; Brownell v. Harsh, 29 Ohio St. 631.
    
      J. B. Ritchie and Alexander § Saltzgaber, for defendant in error:
    1. The contract, being personal, could not be assigned. Hall v. Gardner, 1 Mass. 472; Davis v. Coburn, 8 Mass. 299.
    
      2. The attempted assignment released Chapin. Chitty on Con. (11th Am. ed.) 1088.
    3. It must appear that Chapin accepted Longworth as employer in the place of the firm. • Trimble v. Strother, 25 Ohio St. 378; Chitty on Con. (11th Am. ed.) 1371, 1372.
    4. It requires the consent of all the parties to form a new contract on the basis of the old. Van Epps v. McGill, Hill & Denio, 109 ; Bake v. Bueklin, 2 Denio, 45.
   Okey, J.

The objection urged by Longworth is, that no privity of contract between him and Chapin is disclosed in the petition. And the objection' is well taken. The contract is executory. It is for the performance of particular personal services by Chapin for Doran, Deniston & Bros., at a specified rate to be paid each week. Such a contract is not assignable. Metcalf on Con. 189; Burrill on Assignments (3d ed.) 130, n. (7); Grant v. Ludlow, 8 Ohio St. 1-37; Farrow v. Wilson, L. R. 4 C. P. 744. If the petition contained an averment that Chapin accepted Longworth. as employer, and released the firm, the contract would assume the character of a- novation. 2 Chitty on Con. (11th Am. ed.) 1376, n. Assent is essential, however (Ib.; Hariston v. Sale, 6 Sm. & Mar. 634), though sometimes this may be implied. Cummings v. Blaisdell, 43 Vt. 382; Ernst v. Kunkle, 5 Ohio St. 521; St. Louis v. Clemens, 42 Mo. 69. Aud see Clement v. Clement, 8 N. H. 210, in which the contract as to one of the parties was executed. True, it is averred that after the sale to Longworth, the plaintiff rendered service for him until February, 1874, in accordance with the terms of the contract with the firm, and that Longworth paid him therefor at the rate therein specified. Standing alone, this might be sufficient to render Longworth liable. McGuire v. O'Hallaran, Hill & Denio, 85. But as the petition is, in terms, against Doran, Deniston & Bros., as well as Longworth, the pleader is careful not to aver the release of the firm. And not only is there no averment that the plaintiff made a contract witb Longworth, but there is no statement that he assented, in any way, to the transfer of the lathes, etc. ’ Nor, in view of the averment of existing liability of the firm, is the defect supplied by the statement that Longworth has possession of the lathes, etc.; that the plaintiff performed service and received pay from Longworth at the rate specified in the contract; that the plaiutiff tendered further service, or from his having brought suit. Nor is the defect remedied by dismissal as to the firm without prejudice.

"We are thus relieved from a consideration of the question whether the case, as between Chapin and Longworth, is within the clause of the statute of frauds as to contracts not to be performed within one year. And we need not determine whether, under the code system of pleading, the defense of the statute of frauds is available on demurrer to a petition—a question upon which the authorities are in conflict. Motion overruled.  