dissenting. In Tifton, Thomasville & Gulf Ry. Co. v. Bedgood, 116 Ga. 945 (43 S. E. 257), it was held: “Contract rights coupled with liabilities, or involving a relation of personal confidence between the parties, cannot be transferred to a third person by one of the parties to the contract without the assent of the other.” Mr. Justice Little, in delivering the opinion of the court in that case, said: “ All choses in action arising under contract may be transferred. Executory contracts of a certain character may likewise be transferred. The rule universally recognized is that ‘ rights arising out of a contract can not be transferred, if they are coupled with liabilities, or if they involve a relation of personal confidence such that the party whose agreement conferred those rights must have intended them to be exercised only by him in whom he actually confided.’ Pollock on Contracts (4th ed.), *425, and authorities cited. Mr. Clark in his work on Contracts, p. 524, citing a number of authorities, declares that it is a settled rule that a person can *254not assign his liabilities under a contract, or, ‘ to put the matter from the point of view of the other party to the contract, a person can not be compelled to accept performance of the contract from a person who was not originally a party to it.’ The same author, in dealing with this subject, also says that a person cmay so assign with the consent of the other party to the contract; but this is, in effect, a rescission by agreement, and the substitution of a new contract.’ All the modern text-writers, so far as we have been able to ascertain, recognize that the doctrine above cited from Mr., Pollock is fully established. See Hammond on Contracts, § 355, and note 48 on page 724; Hollingsworth on Contracts, 295; Harriman on Contracts, 228 (§ 382); Anson on Contracts, 287. Possibly the leading modern case in which the doctriné of the assignability of such contracts as this is most fully discussed and applied is that of Arkansas Smelting Co. v. Belden, 127 U. S. 379. In the course of the opinion in that case Mr. Justice Gray, who delivered it, in support of the ruling there made says: * At the present day, no doubt, an agreement to pay money, or to deliver goods, may be assigned by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable. But every one has a right to select and determine with whom he will contract, and can not have another person thrust 'upon him without his. consent. In the familiar phrase of Lord Denman,‘ You have the right to the benefit you anticipate from the character, credit, and substance of the party with whom you contract.’ ” And see Torsig v. Corbin, 142 Fed. 660, where it was said: “A contract by which complainant was given the exclusive right to sell in a specified territory certain patented articles to be sold to him by the other party as required, and by which he agreed to push the sale of the articles, the contract to continue so long as he did so, was in effect one for continuing the personal service on his part, which he could not specifically enforce in equity, for want of mutuality in the remedy.” See also Pomeroy’s Eq. Jur. § 1405.
The contract in this case between Jake Wells and the First National Exhibitors’ Circuit Inc. provided that Wells leased eight Charlie Chaplin releases for six days on each release fQT the first *255week after the release date; and by the terms of the contract Wells agreed to keep and perform the terms of the contract and to pay the amounts specified therein, etc. Wells was designated as the owner of the theater in which the pictures were to be exhibited. Other portions of the contract refer to the prices to be paid, and when payment shall be made; and the agreement is subject to the conditions on the back of the contract. One of the conditions on the back of the contract, which Wells agreed to, is that he is not to show the films leased, in any other theater or theaters or on any other dates than those specified, except with the consent of the lessor in writing. There are other agreements of minor importance.
In view of the authorities cited above, the provisions of the contract, and the evidence, I think that the contract between Wells and the First National Exhibitors’ Circuit Inc. is one which is not assignable without the consent of the First National Exhibitors’ .Circuit ; and that consent is wanting, so far as the pleadings and the evidence disclose. The contract is an exclusive one, which could not be assigned by Wells; and although he offered in evidence an agreement between himself and the Carolina Amusement Co., in which he appears to have bought back the rights that he had sold, he is in the position of a purchaser from the third person to whom he had sold. He is not, therefore, in a position to assert that he had the exclusive right to exhibit the films in Atlanta, for the reason that he himself had violated the terms of the contract between himself and the First National Exhibitors’ Circuit, which he claims was exclusive; and this being a case in equity, before he can ask equity he must do equity. When Wells sold all of his theaters in Atlanta and his interest in the films to the Carolina Amusement Co., he put it beyond his power to perform his part of the contract with the First National Exhibitors’ Circuit, and it could not, under such circumstances, compel specific performance from Wells. Where the^e is an absence of mutuality of remedy, specific performance can not be enforced. Nor could Wells remedy the situation in which he had placed himself, by making a new contract under the terms of which the Carolina Amusement Co. was to permit Wells to use either the Forsyth or Rialto Theaters,, which had formerly been owned or leased by Wells, and sold by him to the Carolina Amusement Co., for the reason, as stated above, that the First National Exhibitors’ Circuit had the right to rely upon Wells performing the *256original contract as agreed, and the duties and liabilities imposed by the contract could not be carried out by exhibiting the films in a theater owned or leased by the Carolina Amusement Co., and conducted by that-company and not by Wells. The First National Exhibitors’ Circuit had the right to expect and to demand that the contract between it and Wells be carried out in good faith by Wells, and no one else, in a theater owned and conducted under his management, where whatever of reputation he had made in the moving-picture world might be of benefit to the First National Exhibitors’ Circuit. The contract between the First National Exhibitors’ Circuit and Wells was made to the latter individually, and the very nature of the contract involved personal service and exhibiting the films in certain theaters which were then owned and conducted by Wells in Atlanta; and the contract was not, under the above authorities, assignable.
From what has been said and the authorities cited it follows, as a matter of law, that the court did not err in disallowing the offered amendments to the petition, nor in awarding a nonsuit.