Action to recover five hundred dollars deposit made by plaintiff's assignor on agreement for sale of land by defendants. Plaintiff recovered judgment, from which defendants appeal on the judgment-roll.
The facts are found as alleged in the amended complaint. The court overruled defendants' demurrer to the said complaint, and as the findings are no broader than the allegations of said complaint, the ruling upon the demurrer becomes the material question on this appeal. The said complaint states in substance: That on the twenty-fifth day of January, 1902, one Lyttle and defendants entered into a written contract for the sale by defendants to said Lyttle of the lot described in said contract for the sum of six thousand five hundred dollars, of which sum the five hundred dollars in controversy was paid to defendants, as a deposit, the time of Lyttle's option to purchase under the contract being three months from February 1, 1902; that upon Lyttle giving notice to defendants that he was willing to purchase, the defendants should furnish for his examination a certificate of title of said lands made by some reputable abstract company. Lyttle assigned his interest *Page 263 in the contract to one West, and West gave notice that he was willing to purchase said lands according to the terms of the contract. Thereupon defendants had made and delivered to West the proper certificates of abstract of title.
The contract provided: "The first party shall have twenty days after the delivery of said certificate of title to him as aforesaid, within which to examine and approve or disapprove the title to said property as shown by said certificate, and the first party shall be the exclusive judge as to whether or not the title to said lands and premises is free and clear of and from all defects, liens, encumbrances, taxes, and assessments whatsoever, and as to whether or not he is willing to accept the same. In the event said first party does not give notice that he will purchase said lands and premises as aforesaid, then the said sum of ($500) five hundred dollars, the consideration for this agreement, shall be forfeited to said second party as liquidated damages; but if the said first party shall give such notice and shall accept said certificate of title, then said sum shall be credited on account of the purchase price of said land and premises, and if the title to said land and premises shall be rejected by first party, then the said sum shall be returned to said party of the first part."
It is alleged and found that Lyttle made the assignment to West on the tenth day of April, 1902, for a valuable consideration; that West assigned to plaintiff on the twelfth day of May, 1902, and that plaintiff is the owner of the said contract and all rights thereunder by reason of said assignment; that on the first day of May, 1902, the defendants furnished to West the certificate of title made by the abstract company, and thereafter "on the twentieth day of May, 1902, this plaintiff duly notified said defendants that he rejected and disapproved of the title to said land and premises as shown by said certificate, and that he refused to accept said certificate of title or said title and disapproved of the same" and demanded a return of the said five hundred dollars.
There is no allegation that the title was in any manner defective, nor that there were any liens or encumbrances of any kind existing upon the premises. The plaintiff places himself and his rights squarely upon the proposition that the contract made the party of the first part, Lyttle, the exclusive judge as to whether or not the title was defective, and as to *Page 264 whether or not "he was willing to accept the same." It is "so nominated in the bond" that Lyttle, the party of the first part, is to be such exclusive judge. The courts generally hold that parties have the right to make any contract which is not unlawful nor against public policy. They have the right to provide for an arbitrator, whose decision, in the absence of fraud, shall be final. They have the right, in making a contract for the sale of lands, to make an attorney or any one else the exclusive and final judge as to whether or not the title is defective. In such case the courts are inclined to leave the parties to abide by the contract as they have made it, and not to make a different one for them. (Church v. Shanklin, 95 Cal. 626; Allen v. Pockwitz,103 Cal. 85;1 Flanagan v. Fox, 3 Misc. Rep. 365,23 N.Y. Supp. 344; Averett v. Lipscombe, 76 Va. 404; Hudson v. Buck, 7 Ch. Div. 683, 23 Eng. Reps. (Moak's Notes) 808, cases cited in notes toChurch v. Shanklin, 17 L.R.A. 207.) But in this case the five hundred dollars were to be returned only when the title had been rejected by Lyttle. He was the party specially selected to pass upon the title and to be the exclusive judge as to whether or not he was willing to accept the same. As plaintiff has invoked the aid of the contract, he must be held to it himself. He does not allege that Lyttle ever examined the certificate of title or rejected it. The conditions upon which the five hundred dollars was to be returned have never occurred.
Plaintiff alleges that he refused to accept and rejected the title. But he had no authority under the contract to pass upon the title nor to reject it. Defendants never agreed that he should do so. They may have been perfectly willing that Lyttle should pass upon the title. They may have had special confidence in his legal ability, his honesty and moral character, and in such degree that they felt assured that he would do nothing except what was right, and that he would not reject the title unless there was a valid reason for so doing. They might have had no such confidence in any other person. Lyttle may have concluded that the title was all right, but that he had made a bad bargain and would forfeit the five hundred dollars. Plaintiff may have purchased the contract on speculation. He avers in his complaint that the right to the moneys deposited, and to demand, sue for, and receive the *Page 265 same, was assigned to him before commencing the action. If he means by this that he procured the assignment for the purpose of bringing the suit upon a doubtful claim, in such case the court would not aid him. (Sanborn v. Doe, 92 Cal. 153.1) The agreement to purchase the land of defendants could be assigned. Such assignment of the contract with all the rights thereunder would have carried the right to recover the five hundred dollars in case the title should in fact prove to be defective. It did not carry the right of making plaintiff the exclusive judge of the title instead of Lyttle. Defendants never agreed that Lyttle or his assignee should be the exclusive judge of the title. The assignment of the contract did not carry with it, as an incident, a contract that was never made. Defendants never consented to make plaintiff a judge of the title. The essence of the stipulation in the original contract that Lyttle should be the exclusive judge of the title was the personal confidence placed in him and that he should personally pass upon the title. Where a contract provides for services of a personal nature, involving the peculiar fitness or ability of the party to perform the services, such contract as to such services cannot be assigned to one party without the consent of the other. The contract in such case is made by reason of the trust and confidence placed in the person selected. Personal performance is of the essence of the contract, and such contract cannot be assigned by one party so as to bind the other to a different contract from that which he made. (British Wagon Co. v. Lee Co., 5 Q.B. Div. 149; Sloan v.Williams, 138 Ill. 46; Devlin v. Mayor et al., 63 N.Y. 17; Burrill on Assignments, 6th ed., note 5, p. 105; La Rue v.Groezinger, 84 Cal. 285.2) In the latter case this court said: "Although the language may not show an intention that the contract should not be assigned, yet the nature of the case may be such that performance by another would be an essentiallydifferent thing from that contracted for."
We advise that the judgment be reversed, with directions to the lower court to sustain the defendants' demurrer to the amended complaint, and to allow the plaintiff a reasonable time to amend.
Chipman, C., and Gray, C., concurred.
1 42 Am. St. Rep. 99.
1 27 Am. St. Rep. 101.
2 18 Am. St. Rep. 179. *Page 266