This is аn appeal from a judgment entered upon the pleadings on a motion by the defendant, Rule 12(c), Rules of Civil Procedure, 28 U.S.C.A. following section 723c. In considering such a motion the facts alleged by the plaintiff must be taken to be true and the inquiry is whether upon those facts plaintiff has stated a cause of action. Ulen Contracting Corp. v. TriCounty Electric Coop., D.C.Mich.1940,
McCloskey & Co. was the general contractor for the erection of a new court house in Berks County, Pennsylvania. Bauman Iron Works, Inc., was awarded a sub-contract by McCloskey •& Co. for the structural steel, ornamental iron, architectural bronze and wrought-iron and cast aluminum for the price of $246,000. Subsequently, Bauman sub-contracted the structural steel work to the Lehigh Structural Steel Co. for $179,500 and several weeks later sublet to the Art Metal Construction Co., plaintiff and appellant' herein, the architectural bronze and wrought-iron work for the finally adjusted pricе of $28,780.70. About one month later Bauman assigned the Mc-Closkey-Bauman contract to Lehigh without the knowledge of McCloskey оr Art Metal. Art Metal performed its work to the satisfaction of the architects. Bauman received from McCloskey aрproximately $208,000 which it turned over to Lehigh. Bauman has become insolvent and a receiver has been appointed for it. Art Metal received some payments from Bauman during the progress of the work and received a small dividend from the receiver. Of the balance of ove.r $9,000 still due it upder the contract, Art Metal, received a little more than half from MсCloskey & Co. directly. It brought this suit against Lehigh to recover that balance for itself and McCloskey.
We think that the court below erred in entering judgment for the defendant. The contract between McCloskey and the County provided that “The contractor agrees to bind every • sub-contractor and every sub-contractor agrees to be bound by the items of the Agreement, thе General Conditions, the Drawings and Specifications so far as applicable to his work. * * * ” The contract further provided that all sub-contractors agreed to be bound to the contractor by the terms of the agreement, the general conditions, the drawings and specifications so far as applicable to their work and to assume toward him all of the obligations and responsibilities which the contractor assumed toward the County. One of the obligations specifically undеrtaken by the contractor with the County was to pay sub-contractors. 1
The McCloskey-Bauman contract specifically stated that it was made subject to McCloskey’s agreement with the County which was incorporated by reference intо the McCloskey-Bauman contract. At this point it can readily be seen that under the McCloskey-Bauman contract therе arose a duty on the part of Bauman to pay subcontractors and that, therefore, Art Metal was a third party benеficiary of that contract. That was the contract which was assigned to Lehigh. The assignment was a full and complete оne, transferring to the assignee “all the right, title and interest of the said Assignor in the aforesaid contract. * * * ” Further, as showing the unqualifiеd nature of the assignee’s obligation, the latter undertook, as part of the consideration, “performance оf the irk required of the assignor”.
*59 The Restatement of Contracts, § 164, states:
“(1) Where a party to a bilateral contract which is at the time wholly or partially exeсutory on both sides, purports to assign the whole contract, his action is interpreted, in the absence of circumstances showing a contrary intention, as an assignment of the assignor’s rights under the contract and a delegation of the performance of the assignor’s duties.
“(2) Acceptance by the assignee of such an assignment is interpreted, in the absencе of circumstances showing a contrary intention, as both an assent to become an assignee of the assignor’s rights and as a promise to the assignor to assume the performance of the assignor’s duties.”
See, also, Blue Star Navigation Co. v. Emmons Coal Mining Corp., 1923,
There are no qualifying words in the instrument constituting the assignment and, therefore, under the general rule abovе expressed Lehigh must be taken to have assumed all of the duties of Bauman under the McCloskey-Bauman contract including thе obligation to pay Bauman’s sub-contractors among whom was Art Metal. Since the decision of the Supreme
Court
of Pennsylvаnia in Commonwealth v. Great American Indemnity Co., 1933,
The judgment is reversed and the cause is remanded for further proceedings.
Notes
The Contractor agrees:
“(d) Tо be bound to the Sub-contractor by all the obligations that the County assumes to the Contractor under the Agreement, General Conditions, Drawings and Specifications, and by all the provisions thereof affording remedies and redress to the Contractor from the County.
“(e) To pay the Sub-contractor, upon the issuance of certificates, the amount allowed to thе Contractor on account of the Sub-eontractor’s work to the extent of the Sub-contractor’s interest therein.
“(f) Tо pay the Sub-contractor, upon the issuance of certificates, if issued otherwise than as in (e), so that at all times his total payments shall be as large in proportion to the value of the work done by him as the total certified to the Cоntractor is to the value of the work done by him.
“(g) To pay the Sub-contractor to suqh extent' as may be provided by the Contract Documents or the Sub-contract, if either of these provide for earlier or larger payments than the abovе.
“(h) To pay the Sub-contractor on demand for his work or materials as far as executed and fixed in place, less thе retained percentage, at the time the certificate should issue, even though the Architect and Engineer fail to issue it for any cause not the fault of the Subcontractors.”