226 Mass. 246 | Mass. | 1917
The material facts are that in December, 1912, the defendant made a contract with one Bearce, in whom he reposed special confidence, to design, manufacture and install the fixtures and equipment for a drug store in a building then in process of erection, Bearce to act in accordance with his own ideas of what would be suitable and proper for that store. Bearce was at this time carrying on the business of cabinet-making and manufacturing store furnishings, occupying a factory for this purpose. The design of the store furnishings for the defendant was made in January following by Bearce. The furnishings and fixtures were manufactured and the installation in the store was made in May, 1913, in a manner and at a price with which the defendant finds no fault. On February 13, 1913, the plaintiff made an agreement with Bearce to take over his business and real and personal property connected therewith and to employ Bearce as manager of the factory where the fixtures and equipment furnished to the defendant were being built. On the same day the contract of Bearce with the defendant was “turned over” to the plaintiff by Bearce. On March 8, 1913, Bearce executed and delivered to the plaintiff a bill of sale of “the following goods and chattels, namely, machinery, tools and implements, stock of lumber and stock in trade manufactured and unmanufactured, horses, teams, harnesses and equipments, and all books of account, notes receivable and bills receivable, and all appurtenances to the business of store furnishings and cabinet-making belonging to me situated upon premises at 11 to 17 Parlin Street in said Everett or elsewhere.” ,
There was evidence tending to show that, in June, after the fix
There were three counts in the plaintiff’s declaration: The first was on a contract between the plaintiff and the defendant for building and providing fixtures and placing them in the store; the second was on an account annexed for furnishing the same goods; and the third alleged an assignment by Bearce to it of the contract between Bearce and the defendant and performance of the contract by it.
The trial appears to have proceeded upon the theory that the contract was made between Bearce and the defendant, was partially performed by Bearce, and was then assigned by Bearce without the knowledge or consent of the defendant, to the plaintiff, who completed it without notification to the defendant until it was finished.
The defendant by several requests asked for instructions to the effect that this contract was of such a nature that without his consent it could not be assigned to the plaintiff by Bearce.
The defendant’s contention, that in this respect Boston Ice Co. v. Potter, 123 Mass. 28, is decisive, cannot be upheld. That case, as is pointed out in Stiff v. Keith, 143 Mass. 224, 225, did not involve the question of assignment of a contract made with a predecessor in business, but related to a new contract sought to be raised by implication.
The question whether a contract is assignable is one which illustrates the effect of general custom in the development of the law, or rather in the application of the general principles of the
In the case at bar the contract was to design, manufacture and install the furniture and fixtures for a new store. It was an entire
These facts easily distinguish the instant case from assignments of contracts obviously indifferent on any reasonable ground as to the person who may perform them, such as was a contract to clean streets, discussed in Devlin v. Mayor & Aldermen of New York, 63 N. Y. 8, to deliver cord wood, as in Atlantic & North Carolina Railroad v. Atlantic & North Carolina Co. 147 N. C. 368, to sell land, as in Simmons v. Zimmerman, 144 Cal. 256, to perform a berth contract respecting a ship, as in Sorrentino v. Buerger, [1915] 1 K. B. 307, 314, or to deliver chalk, as in Tolhurst v. Associated Portland Cement Manufacturers, Ltd. [1902] 2 K.B. 660; S. C. [1903] A. C. 414. See also American Lithographic Co. v. Ziegler, 216 Mass. 287, where the work had been completed before the assignment.
It follows that the fourth and. eleventh of the defendant’s requests for instructions should have been given in substance. Kemp v. Baerselman, [1906] 2 K. B. 604. New York Bank Note
It is doubtful whether novation was raised or considered during the trial. Attention is not expressly called to it in any of the requests for instructions. It is possible, however, that the judge may have had it in mind in his brief instruction to the effect that “There is evidence . . . that Morris did assent to the performance of the contract — ratified, perhaps, would be the better word — because my impression is ... it was after the contract was completed. If, after the contract was completed, although it was not assented to and the completion by this plaintiff company was not binding upon the defendant, it was perfectly open to Morris to assent to the contract and promise to pay in accordance with the assignment between Bearce and the company.” He then proceeded to summarize the evidence-on which such a finding might be based. There was ample evidence to show that Bearce had absolved the defendant from all obligations to him and transferred his rights to the plaintiff. There also was testimony tending to show an unqualified promise by the defendant after complete performance of the contract to pay to the plaintiff the balance due on the contract. This, together with his omission then to protest or express surprise when told by the plaintiff’s treasurer that Bearce was about to leave the plaintiff’s employ, and his accompanying conduct, would furnish adequate basis for an inference that he knew that Bearce at some time after the making of the original contract had sold his business to the plaintiff and entered its employ and in that capacity had completed the performance of the contract, and that the defendant had assented to and ratified this arrangement, and then, with full information as to the relation between Bearce and the plaintiff, acknowledged and accepted the latter as his creditor, had agreed to pay it the contract price, and had released Bearce from all obligation to him under the contract. If such assent and ratification were found, it would amount to a novation or substitution of the plaintiff for Bearce in his relation to the contract with the defendant. So far as concerns the defendant’s obligation to pay, it would be the same as if originally made between him and the
There was no evidence that the original contract was made between the plaintiff and the defendant. The contract confessedly was made between Bearce and the defendant. Admittedly, also, performance of the contract was begun by Bearce, who at least had worked upon the design before the transfer of the contract to the plaintiff, and might have been found to have commenced the manufacture of the work designed. The plaintiff’s rights spring from its contract with Bearce and its subsequent relations with the defendant. These transactions were subsequent to a partial performance by Bearce of his contract with the defendant. Therefore, the principle of Orcutt v. Nelson, 1 Gray, 536, 542, and numerous similar cases, to the effect that when a buyer, who has ordered goods of one person, knows before receiving the goods that a different person is filling the order, he is held to assent to and to ratify the transaction as if at first made with the person who fills the order, has no application to these facts.
The assignment by Bearce to the plaintiff of the partially performed contract was dwelt upon at length in the charge. This aspect of the case may be of importance at a new trial as bearing both upon the right of the plaintiff to assert the rights of Bearce, which seems not to have been conceded by the defendant, and upon the rights of the parties in the event that the jury should find that the defendant assented to the assignment after or during performance of the contract. The jury were instructed that the assignment from Bearce to the plaintiff need not be in writing and might rest in parol. That instruction was correct so far as it
The assignment or bill of sale in writing was important as bearing upon the plaintiff’s right to bring an action in its own name. The only words in that written transfer which might foe thought to include the contract between Bearce and the defendant were “all . . . bills receivable, and all appurtenances to the business.” It was sufficiently favorable to the defendant to leave to the jury the question whether in the light of the construction put by the parties upon the instrument of transfer the contract between Bearce and the defendant was assigned in writing to the plaintiff. Blais v. Clare, 207 Mass. 67, 70. Menage v. Rosenthal, 175 Mass. 358, 361. Winchester v. Glazier, 152 Mass. 316. It would have been open to the jury to find that the parties construed this contract as including the outstanding contracts of Bearce, including that with the defendant. If so, the plaintiff might recover on its third count.
It follows from what has been said that the defendant’s requests, with the exception of 4 and 11, were refused rightly either as wrong in law, partial in the statement of the facts assumed, or inapplicable to the case. No error other than those herein stated are disclosed in the record.
Exceptions sustained.