DISSENTING OPINION.
ELLISON, J.In the foregoing opinion of my associates it is stated that the contract clearly limits the use of the fixtures to the time (not exceeding six months) defendant himself should continue in business. That is tantamount to saying that the contract as to the fixtures is made by its terms to be so far personal that it could not be assigned. I have concluded that that view is unsound, both from a consideration of matters of fact disclosed on the face of the contract, and of the law as applicable to those facts.
What is the reasonable interpretation of the terms of the contract as disclosed by the face thereof? At the outset it must be observed that the contract agrees to sell the goods to Leavell “or to his assignsAnd I think the balance of its provisions must, in reason, necessarily relate to his assigns.
It was not only a contract for the sale of the goods, but it prescribed the manner of selection, invoice and a special mode of payment. It also attached conditions to the sale by providing for certain privileges of repurchase by the vendor at stated prices. If this contract had been assigned by Leavell before the goods had been selected and delivered to him, the assignee *670would, as a matter of course, have stood in his shoes and been bound to perform all his part of the contract. If bound to the burden of performing all the consideration moving from Leavell to the Poster Woolen Company, would he not be entitled to receive all the consideration moving from the Poster Woolen Company to Leavell? As assignee he certainly would be entitled to have the goods selected and delivered to him, and to pay for them by discharging the company’s notes to the bank. Why then would he not be also entitled to the other consideration moving to Leavell, viz.: the privilege of using the fixtures for six months, if he continued in business so long. The latter clause of this séntenee was evidently put in so that if, as contemplated by the contract Leavell or his assignee should be compelled to resell tó the company, or if the business should otherwise become extinct at that place, then Leavell or his assignee could have no further use for the fixtures.
With a view of possibly making the matter appear with greater clearness I have put the case on the supposition that Leavell had assigned the contract before anything had been done under it. But an assignee or purchaser with notice, who purchases after the delivery of the goods, is equally bound by the terms of the contract and my observations are fully applicable to him.
Why should the right to the use of the fixtures not apply to the assignee ? What reason is there "for confining this part of the contract to the original purchaser ? In consideration of the sale of the goods and of one dollar, the Poster Woolen Company had conveyed the use of the fixtures (in handling the goods) for a period of six months; it received the consideration for that length of time, then what possible difference could it make to the company whether Leavell or his assignee used them ? There can be but one reason suggested and that is (as *671above intimated) that the use was a personal trust reposed in Leavell and therefore unassignable. This presents a legal question which is easily answered in favor of the defendant.
The provision is a bailment of the fixtures; not gratuitous, but for a valuable consideration for a specified time. In such case the law is that the bailee has a special property in the thing bailed which is assignable and by which he can resist all trespassing intruders including the bailor. Bailey v. Colby, 34 N. H. 29; Vincent v. Cornell, 13 Tick. 294; Edwards on Bailments, secs. 369-372; Story on Bailments, secs. 394, 395; Lawson on Bailments, secs. 21, 41.
Eor the foregoing reasons I think the order granting the new trial should be affirmed.