(dissenting). On the trial of this case an offer was made by the defendant to introduce testi*488mony to show that at the time the contract was entered into, it would not have 'made such a contract with the C. H. Little Company, and that it would not have been willing to extend credit to that company. This testimony was excluded by the court. In my opinion this was clearly admissible under the rule announced in a case cited in the opinion of Mr. Justice MOORE, Northwestern, etc., Lumber Co. v. Byers, 138 Mich. 534 (95 N. W. 529), where Mr. Justice Stone, then circuit judge, stated the rule to be as follows:
• “I think that the true doctrine is that where an executory contract is not necessarily personal in its character, and can, consistent with the rights and interests of the adverse party, be fairly and sufficiently executed as well by the assignee as by the original contractor, and when" the latter has not disqualified himself from a performance of the contract, it . is assignable.” (Italics mine.)
Exclusion of this testimony was clearly reversible error, but I am also satisfied that the court should have directed a verdict for the defendant upon the record as made, for the rule should be and is that a contracting party has the right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In my opinion it could not be said to be “consistent with the rights and interests of the adverse party” to take away from him the right to decide to whom he will extend credit. It should be borne in mind that the Superior Sand & Gravel Company, whose contract with the B. & O. Company was likewise assigned to the C. H. Little Company, was the active competitor in business of the C. H. Little Company. The effect of the assignment of the contract between the B. & O. Company and the defendant in this case was to compel the Superior Sand & Gravel Company to accept deliveries from an active competitor. Arkansas Valley Smelting Co. v. Mining Co., 127 U. S. 379 (8 Sup. Ct. 1308); *489Hardy Implement Co. v. Iron Works, 129 Mo. 222 (31 S. W. 599); Boston Ice Co. v. Potter, 123 Mass. 29 (85 Am. Rep. 9); Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 266 (146 N. W. 144, Am. & Eng. Ann. Cas. 1915D, 287).
Because of this conclusion it will be unnecessary to determine whether because of the lack of novation it should be said that the situation between the plaintiff and defendant lacked mutuality of obligation or contract. The judgment should be reversed, and no new trial granted, with costs to appellant.
Bird, J., concurred with Kuhn, C. J. Brooke, J., did not sit. Person, J., took no part in the decision.