72 Wash. 132 | Wash. | 1913
This is an action to recover the purchase price of certain jellies and jams sold and delivered to the defendant, West Coast Grocery Company. The sale was by a written contract between the defendant and Vashon Island Preserving Company, a corporation, dated May 17, 1910, which contract it is claimed was sold and assigned to the plaintiff King, on June 11, 1910. It is admitted by both parties to this action that, at about that time, the officers and trustees of the Vashon Island Preserving Company leased its plant to the plaintiff, with the understanding that all of its existing contracts should be assigned to him, and that the lease and the assignment of the contract here in question were parts of one and the same transaction. The evidence shows without contradiction, that thereafter the plaintiff personally and at his own cost manufactured the goods and shipped
The defendant admitted the execution of the contract, admitted the receipt and retention of the goods, but denied the assignment of the contract, and interposed as a set-off or counterclaim damages claimed against the Vashon Island Preserving Company, on account of its breach of warranty in furnishing inferior goods to the defendant under a contract of the year before. The evidence shows that the goods sold under this last-mentioned contract had been received and paid for by the defendant some time prior to the making of the contract of May 17, 1910. The cause was tried to the court without a jury, and judgment was rendered in plaintiff’s favor for $818.59. The counterclaim was refused. The defendant prosecuted this appeal.
The court, in order to avoid a retrial in the event of this court holding that the counterclaim should have been allowed, took evidence on the defendant’s claim and made a finding thereon that the goods furnished by the Vashon Island Preserving Company under the contract of the year before were defective and damaged to the value of $162; that the plaintiff, on and after June 7, 1910, knew that defendant claimed the goods furnished under this first contract were unsalable, but had no knowledge of the extent of such claim of damage; that the defendant, at the time of its reception of the goods delivered to it by the plaintiff under the assignment of the second contract, well knew that they belonged to the plaintiff, but prior thereto had no knowledge of the assignment of the contract.
(1) The appellant first contends that neither the lease of the preserving plant nor the assignment of the contract
The assignment of the contract was made by the secretary, who testified that he was authorized to make it. It is admitted that the lease and the assignment were parts of one and the same transaction. The prima fade establishment of the authorization of the lease was, therefore, some evidence that the transfer of the contract was also authorized. Moreover, it was shown that the trustees had at all times full knowledge of the transaction, knew that the contract was being performed by the respondent, and on two or three oc
(2) But the appellant contends that the contract was not assignable without its consent. There can be no question as to the general rule that, in the absence of prohibition by statute or stipulation by contract, rights arising out of executory contracts are assignable whenever they would survive to the personal representative of the assignor. 2 Am. & Eng. Ency. Law (2d ed.), 1017, 1035; Slauson v. Schwabacher Bros. & Co., 4 Wash. 783, 31 Pac. 329, 31 Am. St. 948; Conaway v. Co-Operative Homebuilders, 65 Wash.
“When the contract is executory in its nature, and an assignee or personal representative can fairly and sufficiently execute all that the original contractor could have done, the assignee or representative may do so and have the benefit of the contract.” Devlin v. Mayor etc. of New York, 63 N. Y 8, 17.
See, also, In re Niagara Radiator Co., 164 Fed. 102.
The question in each case must turn upon the intention of the parties. In order to determine whether a given contract falls within either branch of the exception, it is necessary to consider the nature and purpose of the contract and its terms and provisions. The contract here in question was as follows:
“Seattle, May 17, 1910.
“Sold to West Coast Grocery Company, Tacoma, Wash., for account and subject to approval of Yashon Island Preserving Company,
350 Cases No. 3 Jelly, 4 doz. to case, per dozen.......90c
150 Cases No. 3 Jam, 4 doz. to case, per dozen........90c
Less 15% discount, Pack of 1910, October delivery.
Terms: F. O. B. Tacoma, less 2% cash discount 10 days from date of invoice. The sellers guarantee all goods sold*138 under this contract to comply with the pure food law approved by congress June 30th, 1906.
“Accepted, West Coast Grocery Co., Buyer.
“By, S. A. Nourse, Treas.
Bennington Burton, Broker.
Vashon Island Preserving Co.,
Seller.
“By J. W. King.”
This is simply a sale of personal property for future delivery. There is no undertaking that the goods shall be manufactured by any particular person or corporation. The contract involves nothing of a personal nature, nothing from which it can be implied that performance by the preserving company alone was the inducement or of the essence of the contract, nothing involving a personal confidence. No particular brand or label or trade-mark is specified, no particular process of manufacture imposed, no future dealings of any kind with the property sold, as between the parties, contemplated. It is not a sale of fruits with an agreement to manufacture. It is a sale of a completed product for future delivery. The crucial point is that the appellant was required to pay no money until the goods were furnished of the kind and quality required by the contract. Such a contract, in the absence of stipulation to the contrary, is assignable by either party.
A contract in which one party agreed to sell, and the other to buy, all sound grapes containing a certain percentage of saccharine matter, to be grown from certain vines for a period of ten years, was held by the supreme court of California, after a careful analysis of the authorities, assignable by the seller, upon the same principles herein announced. La Rue v. Groezinger, 84 Cal. 281, 24 Pac. 42, 18 Am. St. 179.
A contract for the drilling of an oil well has also been held by the supreme court of Pennsylvania assignable by the contractor. The court said:
*139 “The personal performance of the work by the legal plaintiff could not have been contemplated by the parties at the time the contract was made. The work of necessity required the labor and attention of a number of men, and it does not appear that because of his knowledge, experience or pecuniary ability, or for any other reason, Galey was especially fitted to carry it on. There is nothing of a personal nature about it, and its personal performance by him was not the inducement nor of the essence of the contract. The contract was assigned to Smith Bros., the use plaintiffs, and the work under it was done by them, with the knowledge of the defendant from the beginning.” Galey v. Mallen, 172 Pa. St. 443, 33 Atl. 560.
The same principles are exemplified in the following decisions: Janvey v. Loketz, 122 App. Div. 411, 106 N. Y. Supp. 690; Anse La Butte Oil & Mineral Co. v. Babb, 122 La. 415, 47 South. 754; Poling v. Condon-Lane Boom & Lum. Co., 55 W. Va. 529, 47 S. E. 279.
It is useless to review the vast number of authorities cited by the appellant in this connection, since the principles here involved are not questioned, and we conceive that a discriminating application of these principles to the contract before us demonstrates its assignability. Moreover, the goods were accepted by the appellant as meeting the contract. They were at least retained by it with knowledge of the assignment. While the evidence was conflicting as to whether or not the respondent notified the appellant of the assignment shortly after it was made, it is not denied that the invoices gave such notice when the goods were delivered. The court would have been justified in finding that the appellant was estopped to question the assignment.
(3) The third contention is that, even conceding that the contract was legally assignable and was validly assigned, still the appellant’s claim against the preserving company was a valid set-off or counterclaim against the assignee, King. The trial court held that the appellant could not set off its claim against the amount due respondent on the assigned
The actual question here involved, though raised in the briefs, was not discussed in the opinion. Whether a matured claim against the assignor of an immature claim may be set off in an action by the assignee brought after the assigned claim has matured, has never been decided by this court.
“The defendant in a civil action upon a contract expressed or implied, may set off any demand of a like nature against the plaintiff in interest, which existed and belonged to him at the time of the commencement of the suit. And in all such actions, other than upon a negotiable promissory note or bill of exchange, negotiated in good faith and without notice before due, which has been assigned to the plaintiff, he may also set off a demand of a like nature existing against the person to whom he was originally liable, or any assignee prior to the plaintiff, of such contract, provided such demand existed at the time of the assignment thereof, and belonging to the defendant in good faith, before notice of such assignment, and was such a demand as might have been set off against such person to whom he was originally liable, or such assignee while the contract belonged to him.”
These sections are statutes in pari materia, and were all passed by the territorial legislature of 1854, and were re
“When two opposing debts exist in a perfect condition at the same time, either party may insist upon a set-off. If, therefore* the holder of such a claim already due and payable assign the same, and the debtor at the time of this transfer
See, also, Bradley v. Thompson Smith’s Sons, 98 Mich. 449, 57 N. W. 576, 39 Am. St. 565, 23 L. R. A. 305; Koegel v. Michigan Trust Co., 117 Mich. 542, 76 N. W. 74; Henderson v. Michigan Trust Co., 123 Mich. 688, 82 N. W. 510; Kull v. Thompson, supra; Fuller v. Steiglitz, 27 Ohio St. 355, 22 Am. Rep. 312; Richards v. La Tourette, 6 N. Y. Supp. 937; Beckwith v. Union Bank, 9 N. Y. 211; Patterson v. Patterson, 59 N. Y. 574, 17 Am. Rep. 384; Jordan v. National Shoe and Leather Bank, 74 N. Y. 467, 30 Am. Rep. 319; Greene v. Darling, Fed. Case, No. 5765; Stitt v. Horton, 165 Ind. 555, 76 N. E. 241; Campbell v. Equitable Life Assur. Soc., 130 Fed. 786. No fraud in the assignment was established. The respondent took an executory contract, performed it at his own expense, and is entitled to his pay from the appellant, who accepted the goods as meeting the contract.
The judgment is affirmed.
Crow, C. J., Main, Morris, and Fullerton, JJ., concur.