27 Mo. 437 | Mo. | 1858
delivered the opinion of the court.
There is no doubt of the correctness of the proposition that an executory contract is not assignable. (Robson v. Drummond, 2 B. & Ad. 303 ; Ohitty on Oontr. 739.) But we do not conceive that this principle has any application to the circumstances of this case. There are contracts in which one party contracts for the personal services of another for his skill, knowledge and experience. In such cases the services of the person undertaking to do the work are engaged and he can not perform it by another. But in most contracts for labor the work may be done as well by one as by another. In many instances the contract is such that the contractor must necessarily engage assistance as he may be unable to do all the work himself, and such is the expectation of the parties when they enter into the contract. The contract involved in this suit is one of this character. The plaintiffs did the work under those who contracted with Dug-dale. The company for whom the work was done accepted it and paid Dugdale. It is too late now for Dugdale to say he did not recognize the plaintiffs as contracting with him. In accepting pay for the work done by them, he at least recognized them as the agents for those who were bound by the contract to do it. They, then, were entitled to their wages. Dugdale knew that the money he received had been assigned to the plaintiffs. But for their services, he would perhaps never have received it. When a contract is being performed, it is competent to him who contracts to perform it to assign the money to be due on its performance, and especially to those who are actually performing the contract. Dugdale is clearly liable to the plaintiffs for all the money due them which he paid away after notice of the assignment.
Reversed and remanded;
