69 N.Y.S. 355 | N.Y. App. Div. | 1901
nder the contract between-the plaintiff and Thomas I. Stoner of- April 28, 1899, there was no obligation resting upon Stoner other than to purchase at least $25,000 net in paper hangings, as provided by the contract, and to pay therefor as provided therein. The contract is not a personal one in the Sense that Stoner was bound to perform in perso.n. Stoner had a right to assign the contract, or in case of his death his executors or administrators would have succeeded to his rights and liabilities under the contract. The obligations of Stoner under the contract could have been discharged by any one. If the assignment was made without the consent of the plaintiff, the obligations of the contract would still have rested upon Stoner, and resort could have been had to him for the fulfillment of the contract if the same had not been carried out and discharged by his assignee. (Rochester Lantern Co. v. Stiles da Barker Press Co., 135 N. Y. 209.) An assignment of the contract by parol was sufficient to transfer the same to the defendant. (Hooker v. Eagle Bank, 30. N. Y. 83; Doremus v. Williams, 4 Hun, 458; Risley v. Phenix Bank, 83 N. Y. 318; S. C., 111 U. S. 125 ; Marcus v. St. Louis Mutual Life Lns. Co., 68 N. Y. 625; Epstein v. United States Fidelity & Guaranty Co., 29 Misc. Rep. 295.) At the time of the trial an actual written transfer of the contract had been executed and delivered, and plaintiff will not be prejudiced by an adjudication of tne rights between the parties to this action
- The defendant further claimed that it gave to the plaintiff an -order in compliance with said agreement, and evidence was received tending to substantiate, its contention. The defendant also contended that the plaintiff by entering into the agreement with the •Continental Wall Paper Company put itself in a position where it was unable to fill any order given to it by the defendant, and that the officers of the defendant stated to it that they could not ship •any goods to the defendant under the said contracts with it. At
All concurred, except Kellogg, J., dissenting, and Smith, J., not voting. ’
That part of the judgment entered upon the Verdict affirmed, and. that part which dismisses the counterclaim reversed and new trial granted thereon, with costs to the defendant to abide event.