200 Mich. 2 | Mich. | 1918
The Detroit, Toledo & Ironton Railway Company, the predecessor of plaintiff, entered into a contract with defendant on the 29th day of August, 1906, which had for its object the construction, maintenance, and operation of a telegraph line along the right of way of the railway extending from the city of Detroit to Ironton on the Ohio river. In substance, this contract required the defendant telegraph company to furnish the poles, wire, and other materials for the construction of the line, and a foreman to direct its construction. It made it incumbent on the railway company to grant an easement over its right of way for the line, and to furnish the labor to construct, maintain, anckoperate the same, and to furnish office room at the several stations, in which to operate the system. The contract is specific as to' what each party shall furnish, pay for and receive, but we think it unnecessary to recite them in detail. The contract was to continue for a period of 25 years and longer unless one of the parties gave notice to terminate it. In pursuance of this , contract the work was done and the line operated. So far as the record shows the parties worked in harmony under the contract, and the railway expended upwards of $20,000 in discharging its obligations thereunder. In the year 1908 the railway found its way into the hands of a receiver by reason of the foreclosure of certain mortgages on its property. The receivership lasted about six years, during which time the receiver operated the railway and telegraph system and discharged the contract obligations of the railway company. At the expiration of this period the property was sold under the direction of the Federal court and purchased by plaintiff in March, 1914. Soon after taking possession thereof
Plaintiff takes the position that the contract was a valid one, that the Detroit, Toledo & Ironton Railway Company had an enforceable interest therein, and that, having assigned' that interest to plaintiff, it can now be enforced in its behalf. The defendant contends that the contract was not assignable, that when plaintiff took possession of the railroad property by virtud of the foreclosure proceedings, the contract was at an end and afterward neither party could enforce it against the other. These contentions appear to raise the following questions:
(1) Was the contract assignable?
(2) Was the contract assigned?
1. The test of the assignability of an executory contract is laid down in Northwestern Cooperage & Lumber Co. v. Byers, 183 Mich. 534, as follows:
“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 for the performance of the contract, it is assignable.”
This rule was followed in the recent cases of Voigt v. Heating Co., 164 Mich. 539, and the C. H. Little Co. v. Transit Co., 197 Mich. 481.
Applying this test to the contract under consideration, we find no difficulty in concluding that it falls within the class of contracts which are assignable.
While the railway company became unable to carry out its contract on account of insolvency, its obligations thereunder appear to have been discharged by
2. Did the railway’s interest in the. contract pass to plaintiff? The contract with plaintiff’s predecessor was made subsequent to the mortgages which underwent foreclosure. We do not understand that it is contended that the rights of the railway in its contract were covered by the lien of the mortgages as after-acquired property. The decree of the Federal court providing for the sale and transfer, as well as the deeds and bills of sale transferring the same, contemplated that the interest of the mortgagee, of the
The decree will be affirmed.