Adair v. Smith

23 Ga. App. 290 | Ga. Ct. App. | 1919

Jenkins, J.

(After stating the foregoing facts.) Something may properly be said in elaboration of the last two divisions of the syllabus. The clause in the lease agreement making the rent payable either to the Glover Eealty Company, or to its successors or assigns can not be construed, as was done in Swarts v. Narragansett Electric Lighting Co., 26 E. I. 436 (59 Atl. 111), as words merely descriptive of the persons who might take an interest in or incur a liability under the contract, but must be taken as effecting the terms of the contract itself. Here the words as plainly employed designate the person or persons who shall execute the contract, and are not intended to be merely descriptio personae and to pertain only to who might acquire a right or incur a liability thereunder. See also Schlesinger v. Forest Products Co., 78 N. J. L. 637 (76 Atl. 1024, 30 L. R. A. (N. S.) 347, 138 Am. St. E. 637). But while, in the proper construction of a contract which might otherwise be taken as having been intended to be personal in its nature and therefore non-assignable, heed must thus be given to the actual and' different intent as evidenced by the language used, still we do not mean to say that even the actual incorporation of general words of assignment must always and necessarily show that the real intent of the agreement was not to procure the benefit of a personal and peculiar service. As was stated by the late Justice Lumpkin in Cowart v. Singletary, cited in the syllabus, “Certain classes of contracts aro inherently non-assignable in their character, such as promises to marry, or engagements for personal services, requiring skill, science, or peculiar qualifications.” As an example of an engagement calling for such special, personal, and peculiar skill or qualifications, Chief Justice Stiness, of the Supreme Court of Rhode Island, in Swarts v. Narragansett Electric Lighting Co., supra, instances an agreement whereby one obligates himself to paint a portrait for another. In such a case, even were the word “assigns” added to the name of the party upon whom the obligation itself is imposed, it still could not be thought or held that the mere addition of such word could reasonably manifest an intention to render assignable a contract which in its very nature was inherently personal and utterly incapable of thus being made so. While it might be truly said that the services involved in the instant case call for the exercise of integrity and ordinary business capacity (and the same might be said as to almost any engagement), still it cannot be contended that they involve the exercise of any special and peculiar talent, or that their performance by another would be essentially different in result from what had been contracted for. When the assignee of the contract collects the rent and turns it over to the owner, the service is precisely and in all respects the same as if the work had been accomplished by the original agent. Here, as always, the intent of the parties, as shown by the contract, at last must govern; and while it might be altogether reasonable to suppose that an owner might desire some ■ particular person, for some particular reason, to execute such a ■ service, still there is no reason why the law would forbid or prevent his making a contrary agreement authorizing the agent to assign the contract of service to another; and where the contract as made plainly expresses such a purpose, it should be considered .¡that he intended to do that which he actually did, unless it be that the work provided for, if performed by another, would be essentially different from what has been contracted for.

The question has not been an altogether easy one to decide, since all' the arguments, both in justice and under the law, do not seem unmistakably to point the same .way. But under our view of the law, when the contract as agreed upon by the owner made the rent payable either to Glover Realty Company or to such other person as the contract might be assigned to, the owner (so far as his liability for commissions is concerned) lost the power to select for the service one of his own particular and peculiar choice, even though it be granted that the service might, in a sense, otherwise and ordinarily be properly considered as personal in its nature. It might well be said that the agent’s power of assignment would not authorize him to require the owner to accept in his stead the services of one who was dishonest, or one who was incompetent to perform even such an ordinary task; but no such question as this is made by the record, and the defendant in fact has made specific disclaimer of any such ground of defense.

It is our opinion that the judge of the superior court erred in sustaining the certiorari and rendering final judgment in favor of the defendant.

Judgment reversed.

Wade, C. J., and Luke, J., concur.