Costs of action, when If the action was brought by or against a third party as a recoverable consequence of the default of the defendant and the plaintiff as damages. was justified in bringing or defending the action, the costs may, in general, be recovered against the defendant as special damage. The plaintiff, having bought a horse from the defendant with a warranty, resold it with a similar warranty, not knowing that it was unsound, and being sued for a breach of the warranty gave notice of the action to the defendant and offered him the defence of it; the defendant gave no answer and the plaintiff defended the action and had to pay costs; it was held that he was entitled to recover such costs as damage in an action for the defendant's breach of warranty (a). The plaintiff, as broker for the defendant, entered into a contract for the purchase of goods, which the defendant afterwards repudiated, and the plaintiff, being sued for the breach of contract in not accepting the goods, with the knowledge of the defendant defended the action and had to pay and incur costs; it was held that he was entitled to recover the costs as damages in an action against the defendant upon his contract to indemnify him in acting as broker (b). The plaintiff, relying on the representation of the defendant that he was authorized to order goods for another, supplied the goods according to the order and brought an action against the alleged principal for the price, in which he failed because the defendant had not the authority represented, and was obliged to pay the costs; it was held that he might recover those costs as damages in an action against the defendant for the breach of warranty of his authority as agent (c). In a similar action against an agent who had falsely represented that he had authority as agent for another to contract to grant a lease to the plaintiff, it was held that the costs of a Chancery suit for specific performance instituted against the alleged principal in reliance upon the defendant's representation of authority and in the absence of 1 Bing. N. C. 492; and see Hathaway (a) Lewis v. Peake, 7 Taunt. 153; Taunt. 202; Blyth v. Smith, 5 M. & (b) Broom v. Hall, 7 C. B. N. S. 503. (c) Randell v. Trimen, 18 C. B. 786; 25 L. J. C. P. 307. any notice from him to the contrary, and which was dismissed upon the ground of his want of authority, might be recovered as damages, although no notice was given to the defendant before instituting the suit (a). tion, when The costs of an action cannot be recovered as special Costs of acdamages unless the plaintiff was justified upon reasonable not recover. grounds in bringing or defending the action (b). Thus, where able as damages. the acceptor of a bill for the accommodation of the drawer, having been compelled to pay it, sues the drawer for an indemnity, he cannot claim as damages the costs of defending an action upon his acceptance, because he ought to have paid it without action (c). The plaintiff bought a horse of the defendant with a warranty, and having resold it with a similar warranty was sued for a breach and defended the action, but it appeared that he might have known by a reasonable examination of the horse that it was unsound before defending the action; it was held that the costs of the defence were occasioned by his own imprudence, and could not be charged as special damage consequent upon the defendant's breach of warranty (d). The plaintiff had been let into possession of premises by the defendant under a supposed authority in him to let them on behalf of the owner, but upon a mere verbal agreement for a lease for seven years, and the owner afterwards brought ejectment against him and recovered the premises; it was held that he could not charge the defendant with the costs of defending the ejectment as damages caused by his breach of warranty of authority, because the defence must necessarily have failed by reason of the agreement for the lease being merely verbal (e). Where the action, the costs of which are claimed as damages, was brought in respect of acts for which the plaintiff was in whole or in part independently responsible, he cannot recover the costs of such action (ƒ). Thus, where a (a) Collen v. Wright, 7 E. & B. 301; 26 L. J. Q. B. 147; 27 ib. 215; and see Hughes v. Graeme, 33 L. J. Q. B. 335; ante, p. 307. (b) See Broom v. Hall, 7 C. B. S. 503; Richardson v. Dunn, 8 C. B. N. S. 655; 30 L. J. C. P. 44; Bleaden v. Charles, 7 Bing. 216. (c) Beech v. Jones, 5 C. B. 696. (e) Pow v. Davis, 1 B. & S. 220; (f) Short v. Kalloway, 11 A. & E. 28; Walker v. Hatton, 10 M. & W. 249. lessee, being under a covenant to repair and having granted an under-lease subject to a similar covenant, was sued for a breach of the covenant and had to pay the costs of the action, it was held that the loss was attributable to his own breach of covenant, and could not be recovered as damages in an action against his underlessee (a). Where the costs of an action are recoverable as special damage caused by the breach of contract of the defendant, the plaintiff may charge not only the costs as taxed between party and party, but also his own costs as taxed between attorney and client (b). The liability to pay costs, although not yet paid, is sufficient to sustain the claim of the plaintiff to recover the amount as special damage, if the costs when paid would be recoverable as such (c); but the liability must be properly described as a liability in the declaration (d). (a) Penley v. Watts, 7 M. & W. 601; Walker v. Hatton, 10 M. & W. 249; overruling Neale v. Wyllie, 3 B. & C. 533; and see Logan v. Hall, 4 C. B. 598; Smith v. Howell, 6 Ex. 730; Short v. Kalloway, 11 A. & E. 28. (b) Hughes v. Graeme, 33 L. J. Q. B. 335. (c) Smith v. Howell, 6 Ex. 730; Randall v. Raper, E. B. & E. 84; 27 L. J. Q. B. 266; Spark v. Heslop, 1 E. & E. 563; 28 L. J. Q. B. 197; Josling v. Irvine, 6 H. & N. 512; 30 L. J. Ex. 78. (d) Pritchett v. Boerey, 1 C. & M. 775; and see Richardson v. Chasen, 10 Q. B. 756. 601 CHAPTER VI. ASSIGNMENT OF CONTRACTS. SECTION I. ASSIGNMENT OF CONTRACTS BY ACT OR AN assignment of the rights or liabilities arising out of contracts may occur :-by act or agreement of the parties ;—by the assignment of estates in land to which covenants are annexed;-by marriage operating upon the contracts of the wife;-by the death of one of the parties transferring the estate of the deceased to his representatives;-by bankruptcy-which modes of assignment will be treated in order in the following sections. able at By the common law a chose in action, under which class Contracts of rights is included the right arising from a contract, and not assignthe right of action for the breach of a contract, is, in ge- common neral, not assignable by the party entitled (a). law. The rights arising out of a contract are, in effect, as- Assign (a) Co. Lit. 214 a; 232b; 2 Blackstone's Com. 442; Lampet's case, 10 Co. 48 a; Parker v. Wise, 6 M. & S. 239; Fairlie v. Denton, 8 B. & C. 395; Thompson v. Dominy, 14 M. & W. ment of contracts in equity. ment of Assign- signable in equity; an equitable assignment of a chose in accontracts in tion being in the nature of a declaration of trust by the party equity. having the legal right, and an agreement on his part to permit the assignee to make use of his name to enforce it (a). A court of equity will decree specific performance of a contract in favour of an assignee of the benefit of it. Thus, the assignee of a contract for the purchase of land may obtain specific performance against the vendor (b). So, the assignee of an agreement for a lease may enforce the granting of the lease; but the lessor is entitled to have the covenants executed by the person with whom the original agreement was made (c); he cannot, in general, object that that person has become insolvent (d). If the lease agreed for is to be subject to a proviso against assignment, the assignee of the agreement cannot enforce it against the lessor (e). Contracts in which the personal acts and qualities of one of the contracting parties form a material ingredient are, in general, not assignable; thus, a contract by a publisher with an author to publish a work was held not assignable by the publisher to another, without the consent of the author, in consequence of the personal trust placed in the publisher by the author (ƒ). A mere offer of a contract made to a person, before acceptance, is not assignable even in equity (g). In equity the assignce may sue in his own name, and enforce the contract directly against the other contracting party, making him, as well as the assignor, if necessary, a party to the bill (h). But a court of equity will not entertain a suit by the assignee of a debt, where he can enforce (a) Butler's note to Co. Lit. 232b; Row v. Dawson, 1 Ves. sen. 331; 2 White & Tudor, L. C., 3rd ed. 667. (b) Nelthorpe v. Holgate, 1 Coll. C. C. 203. (c) Crosbie v. Tooke, 1 M. & K. (d) Crosbie v. Tooke, supra. 504; see Buckland v. Papillon, L. Rep. 1 Eq. 477; 35 L. J. C. 387; 1 Weekly Notes, 377. (f) Stevens v. Benning, 1 K. & J. 168; 24 L. J. C. 153; see per Lord Abinger, C.B., Gibson v. Carruthers, 8 M. & W. 321, 343. (g) Meynell v. Surtees, 3 Sm. & Giff. 101, 117; ante, p. 23. (h) Story, Eq. Jur. 1057; Nelthorpe v. Holgate, 1 Coll. C. C. 203, 217. |