8 S.D. 153 | S.D. | 1895
This is an original action, brought by the plaintiff, as assignee, against the state, pursuant to the provisions of chapter 1, Laws 1890, to recover damages for the al
For the first cause of action it is alleged that plaintiff’s assignor was and is a corporation organized under the laws of this state; that on the first day of June, 1892, the then secretary of state and ex officio commissioner of public printing, in accordance with the provisions of Chapter 99, Laws 1891, advertised for proposals for the printing of the reports of the state officers and other official documents therein designated for a period of one year; that the Free Press Company, by this plaintiff, as its business manager, made proposals for such printing, and, being the lowest bidder, was awarded, the contract therefor; that a contract was duly executed by the said commissioner of public printing and the said Free Press Company for said printing, and to secure the faithful performance of said contract on its part the said Free Press Company executed a bond with good and sufficient sureties as required by law; but subsdquently the said Free Press Company assigned said contract to the plaintiff herein, who thereupon proceeded to secure a large amount of type, paper,, and other material necessary for the purpose of carrying out the provisions of said contract. It is further alleged that the plaintiff has in all things complied with the terms of the contract stipulated to be performed by the said Free Press Company, and has printed all reports and documents as required by the said commissioner of public printing, of the class designated in said contract, except the report of the state auditor, the report of the inspector of mines, and the report of the secretary of the pharmaceutical association, copies of which were not furnished the plaintiff, but were by said officers caused to be printed by other par
The second cause of action is similar to the first, except that the contract is alleged to have been made with one William G. Yates, and was for printing “circulars, blanks, letter heads, note heads, envelopes, list of standing committees, roll calls, resolutions, blanks, blank reports of committees, names of members of legislature, labels for desks, signs for committees, cards and blanks of all kinds for the use of the state officers and the legislature of the state of South Dakota for the period of one year from July 1, A. D. 1892, including incidental printing for the legislature in said year; and to furnish the material and perform the labor in producing the same.”
The complaint further alleges: “That said Yates, as said plaintiff is informed and believes, did all the printing for the said state officials under his said contract that he was furnished copy or orders for, and was ready and willing to do all that his contract called for fór said officials, but that there was a large amount of printing to be done for said officials which said Yates was entitled to do under his contract, and was ready and anxious to do the same, to-wit.” Here follows a specification of the amounts of printing that he, plaintiff, claims was to be done for the different state officials, amounting to the sum of' $4,650. The plaintiff further alleges: “That said Yates, as said plaintiff is informed and believes, notified said Ringsrud, and also those state officials above named, that he was ready to do all their printing that his contract called for, and requested that he be furnished with their copy or orders for the same, but they failed to furnish him with said copy or orders; wherefore the'said Yates was damaged in the sum of $4,650, being the amount to which he was entitled under his said contract with said defendant.” The complaint further alleges that said Yates duly presented his claim to the state auditor for allowance, and that he refused to allow the same, and that prior to the commencement of this action the said Yates duly assigned his said
The learned attorney general contends in support of his demurrer to the first cause of action: “That the right of the Free Press Company, under its contract, to print the reports of the state auditor, the inspector of mines, and the State Pharmaceutical Association, could not be assigned to Arthur L. Carter, the plaintiff hearin. The right was a personal one, belonging alone to the Free Press Company. The proposal and specifications came from the Free Press Company, and were accepted, and a personal contract entered into between the state and the Free Press Company. The Free Press Company gave a bond for the faithful performance of this contract, the condition of which was that, if the Free Press Company should well and truly perform said contract, and in all things comply with the same, the contract should be null and void; otherwise in full force and effect. ” This contention is, in our opinion, untenable. There is no stipulation in the contract prohibiting the Free Press Company from assigning the same, and we discover nothing in the nature of the contract, or in public policy, that would prevent such an assignment, so long as the state retained the obligation of the original contractor and its sureties for its faithful performance of the contract. As said by the court of appeals of New York in Devlin v. Mayor, etc., 63 N. Y. 8: “The assignability of a contract must depend upon the nature of the contract and the character of the obligations assumed, rather than the supposed intent of the parties, except as that intent is expressed in the agreement. Parties may, in terms, prohibit the assignment of any contract, and declare that neither personal representatives nor assignees shall succeed to any rights in virtue of it, or be bound by its obligations. But when this has not been declared expressly or. by implication, contracts other than such as are personal in their
In that case the city of New York had entered into a contract for sweeping the streets of that city, with one Hackley, who had assigned the contract to the plaintiff in that action. The assignee was prevented by the officials of the city from completing his contract, and one of the defenses of the city to an action for a breach of the contract was that said Hackley could not legally assign the contract. The court, therefore, in its opinion, discusses at great length the assignability of this class of contracts, and arrives at the conclusion that there was nothing in the nature of the contract or in public policy prohibiting such an assignment. There is, in our opinion, no element of personal contract, in the sense in which that term is ordinarily used, in the contract in controversy, as is quite apparent from an examination of the law under which the contract was executed. The secretary of state, as ex officio commissioner of public printing, is required to advertise for proposals for the several classes of printing, and he is required to accept the lowest responsible bid consistent with good work, etc., and the only limitation is that contracts shall not be let to parties outside of the state. It will thus be seen that the question of the personal qualifications of the contract or does not enter into the contract. The contract is not for the personal services of the contractor, and he may do the work through agents or assignees. Whether such agent acts under a naked power or a power coupled with an interest cannot affect the character or vary the effect of the delegation of power by the original contractor. Had the contract in this case been made with an
The demurrer to the second cause of action presents the further question as to whether or not the complaint shows affirm