148 P. 530 | Cal. Ct. App. | 1915
On September 7, 1912, an agreement in writing was made between respondent A. L. Gribling and L. Wetherall whereby Wetherall was to do certain painting and finishing in a building then under construction by Gribling as general contractor. Before any work was done under this contract of September 7th, Wetherall executed to appellant Bohan a writing in which he said that for a valuable consideration "I hereby assign to Mr. Bohan" the said contract and "I direct Mr. Gribling to pay all moneys to Mr. Bohan." Thereafter work was done in part performance of the painting contract. This work was done by S. Thomas and men under his supervision, engaged therefor by appellant and payments on account were made by respondent to appellant. On December 21, 1912, appellant informed respondent that he would furnish nothing more on the job and that respondent could take any action or employ any men that he saw fit to employ to finish the work. The work having been abandoned by appellant, respondent caused it to be completed at a reasonable *772 cost, which was in excess of the contract price. The appeal is taken by defendant from a judgment against him for the amount of this excess.
Appellant contends that the contract was assigned by him to Thomas; that respondent accepted Thomas as the party to perform the contract; and that the job was abandoned by Thomas. Written findings having been waived, we must assume the facts against this contention, since there is evidence tending to support implied findings in favor of respondent as to these facts. The propositions of law urged by appellant's counsel are, that the contract between Gribling and Wetherall is personal and could not be assigned; that the acceptance of the assignment by respondent and by appellant is not mutual, because they did not agree upon the same thing in the same sense, and that the acceptance is invalid because it is an alteration not in writing relating to a written contract; and that the assignment does not provide for performance of the contract by appellant.
There are contracts for personal service or other personal performance which cannot be assigned so as to transfer the concurrent obligation without the consent of the person entitled to such performance. This is illustrated by the contract of an artist to paint a portrait; or a sale of land under agreement by the purchaser to execute his own promissory note for a part of the purchase price. (Taylor v. Palmer,
The judgment is affirmed.
James, J., and Shaw, J., concurred.