Appellants ask a reversal upon three grounds: (1) That the contract between F. Haag & Bro. and Cheatham was for the rendition of personal services, and was not assignable; (2) that if the contract was assignable to any extent, it could be only for services theretofore rendered in the purchase of the land, and could not be assigned for services to be thereafter rendered in the management and sale of the land; and (3) that the sale by Haag & Bro. to Mann Bros. was not a final sale such as was within the contemplation of the contract between them, and that Mann Bros. are not now liable thereunder.

Under our view of the case the first and second grounds may be considered together.

It is a well settled general doctrine that a contract is not assignable where it involves a personal liability, a relation of personal confidence, or calls for the skill or experience of one of the parties. One can not, therefore, assign his liability under such a contract so as to require the other party to accept the performance of the contract from a person who was not originally a party to it. The reason for the rule lies, not only in the right of the person to know to whom he is to look for the satisfaction of his rights under the contract, but also in his right to the benefit which he contemplates from the character, credit and substance of the person with whom he contracts. If, however, a person undertakes to do work for another, which requires no special skill, and he has not been selected for the work with reference to any personal qualifications, he may have the work done by some equally competent third person. This, however, is not an assignment of his liability, for he does not cease to be liable if the work is not done by his assignee in accordance with the contract. Furthermore, the general rule has no application in cases where the assignment is assented to by the other party to the contract, in which case there is, in effect, a new contract. It is an agreed rescission of the old contract, and the substitution of a new one in which the same acts are to be performed by different parties. It is apparent, however, that Cheatham's ass gnment of his contract in this case does not come within either the terms or the spirit of the general rule above laid down, for Cheatham in no way attempts to assign his liability under the contract; he assigned his benefits only. Reichert, the assignee, was the owner of a one-half interest in the land, and Cheatham by agree

ment of the owners, had been and continued to be under Reichert's supervision and control in rendering his services under his contract with the Haags and with Mann Pros. By their conduct the appellants construed the con tract as remaining in force, with no one substituted for Cheatham to do Cheatham's work. No attempt was made to so substitute any one for Cheatham, and he not only recognized his liability but performed his work in discharge of that liability. And while it is true, that the assignment is general in its terms, in that it assigned and transferred "the above contract" to John Reichert, it is evident that the intention and effect of the assignment was to transfer to Reichert the benefit of the contract, and not the liability thereunder.

Moreover, although F. Haag & Bro. and Mann Bros. say that they never agreed to the assignment, their acts thereafter were equivalent to an assent to the assign ment, since they not only accepted Cheatham's services but paid one-half of his expenses for repeated trips made at the direction of Reichert. Cheatham subsequently sold the timber on less than one-half of this tract of land to a box company for $15,000, and for that service he did not claim any extra compensation; on the contrary, all the parties concerned treated that service as having been rendered under the original contract. So, in either view of the case, Cheatham's assignment to Reichert was valid, and must be sustained.

Neither do we concur in the suggestion that the agreement of June 29th, 1906, by which Mann Bros agreed to pay Cheatham's fee in case F. Haag & Bro. should be under any liability therefor by reason of the sale by them to Mann Bros., can affect Reichert's rights urder his assignment. Neither Reichert nor Cheatham was a party to that agreement, and neither of them can be bound or affected by it. The rights of Cheatham and Reichert to commissions for the sale of the land are fixed by the contract of March 27th, 1906, between F. Haag & Bro. and Cheatham, and the subsequent assignment of the benefit of that contract to Reichert. And the sale contemplated by that contract having been made, Cheatham's fee was earned, and its payment can not be postponed by the agreement of June 29th, 1906, which at most contemplates some future, final sale or settlement between F. Haag & Bro. and Mann Bros. That is a matter

entirely between the two last-named parties, and can not be used to affect Cheatham's rights under his contract.

Concerning appellee's contention under their cross appeal granted by the circuit court, that the judgment was for too small a sum, it is sufficient to say that a crossappeal con not be granted by the circuit court; it can be granted only by this court. Civil Code, section 755; Mur phy v. Blandford, 11 Ky. Law Rep., 417; Hancock v. Hancock's Admr, 24 Ib., 664. And, as no cross-appeal was prayed or granted here, that branch of the case will not be considered.

The judgment of the chancellor is affirmed with dam

ages.

Wiedemann v. Crawford.

(Decided February 16, 1911.)

Appeal from Campbell Circuit Court.

Frauds-Statute Of.-A verbal agreement made between two persons, by which one of them is to furnish the money to buy land and the other is to have a specified interest in it, is not within the statute of frauds.

DOLLE, TAYLOR & O'DONNELL and RAMSEY WASHINGTON for appellant.

JAS. C. and R. A. WRIGHT for appellee.

OPINION OF THE COURT BY JUDGE CARROLL-Reversing.

The appellee Crawford in September, 1909 filed his petition in equity against the appellant Wiedemann, in which he set out that in January, 1909, the suit of Charles Wiedemann against the Highland Hotel Company for a sale of the roperty of that company was pending in the Campbell circuit court; that he and Wiedemann were then each owners of preferred and common stock in said company, and each had a claim for money loaned to it, and that in January, 1909, they entered into the following written agreement:

"Both owning preferred stock in, and claims against The Highland Hotel Company, and its property being about to be sold in receivership proceedings, we agree to purchase at the sale under such order, in the name of

some one agreed upon by us, all real estate (excepting the Shelley Arms property) of said The Highland Hotel Company, and all its personal property, at a figure not exceeding the claims (excluding the stock claims) against said hotel company, and that our interests and ownership in such purchase shall be in proportion to the sums invested heretofore by us in the enterprise of said hote! company, including both common and preferred stock and loans. As Mr. Wiedemann will probably be absent when said sale occurs, the question of purchasing at a higher figure, shall be a matter of agreement between Clarence Wagner, representing said Wiedemann, and L. J. Crawford."

That afterwards, they agreed on L. C. Widrig as the person to purchase the property for them under the agreement. That on March 8, 1909, the real estate mentioned in the agreement, and the personal property of the Highland Hotel Company was by the master commissioner in said case and under the orders of sale therein sold to L. C. Widrig, and the sale was reported to and confirmed by the court in March, 1909. That afterwards, each of them paid for the property sold as above stated in proportion to their respective interests, estimated and agreed upon between them as follows, the interest of Crawford being 29 23-70 per cent, and the interest of Wiedemann 70 34-70 per cent. That afterwards, in September, 1909, the property purchased by Widrig was by order of court conveyed to him. He further set up that prior to the 30th day of March, 1909, Wiedemann, acting through Clarence Wagner, his attorney in fact, entered into an agreement with Crawford, that Widrig should buy for Crawford and Wiedemann the Shelley Arms property, and that Wiedemann should advance by way of a loan the sun. necessary to pay for the same at the sale thereof by the master commissioner, and that on March 30. 1909, Widrig purchased the Shelley Arms property for Crawford and Wiedemann pursuant to said agreement, and the sale was reported and confirmed by the court. That afterwards Wiedemann in accordance with the agreement paid to the master commissioner the purchase price of the Shelley Arms property, and in September, 1909, it was conveyed to Widrig. He averred "that Widrig held the title to all of the property conveyed to him as before stated as trustee for himself and Weidemann, as their interests appear in the written

agreement," but that in September, 1909, Wiedemann secretly and fraudulently procured Widrig to convey to him all of said property in violation of the rights of Crawford. He prayed that the court direct Wiedemann to convey to him an undivided 29 23-70 interest in all of the real and personal property purchased and conveyed as above stated, and that the conveyance of the Shelley Arms property should contain a lien in favor of Wiedemann to secure the payment of its purchase price, $23,000, with interest.

In an amended and substituted answer filed by Wiedemann, he admitted that the written agreement as to the Highland Hotel Company property (excepting the Shelley Arms property) was entered into, and that it was agreed that Widrig should purchase the property, except the Shelley Arms property, for himself and Crawford in accordance with the terms of the agreement, and that it was so purchased and conveyed to Widrig. He also admitted that their interests in this property were as set out in the petition, but he denied that Crawford had paid his proportion of the purchase price setting up that this property (excepting the Shelley Arms property) was sold for $54,450, and that three bonds were executed by himself, each for one-fourth of the purchase price and one forth thereof was due in cash on the day of the sale but was not paid. That afterwards the court directed the master commissioner to collect all of the purchase price excepting $9,000, which was to remain a lien upon the property, and that on June 25, 1909, he paid the entire purchase price, excepting this $9,000, and what was paid by Crawford. The substance of this portion of the answer being, that $9,000 of the purchase price was unpaid; that Crawford, excepting his proportion of this, which was unpaid, had paid his proportion of the remainder of the purchase price less $1,183.93, which he owed to Wiedemann on account of his having paid the entire purchase price. He further averred that although frequently requested so to do, Crawford had failed to pay him the $1.183.93 due, and consequently he took to himself a deed to the property, but expressed his willingness to convey (excepting the Shelley Arms property) to Crawford an undivided 29 23-70 interest in it upon the payment by Crawford of $1,183.93, with interest, ard tendered a deed so conditioned.