152 P. 38 | Mont. | 1915
delivered the opinion of the court.
The material facts in this case are: On December 13, 1907, one B. S. Smith entered into a written contract with the Standard Sewing-Machine Company, a Colorado corporation, which contract provided, among other things, the following: That Smith should receive such sewing-machines as the company should send him from either Denver, Colorado, or Cleveland, Ohio; that he should at once provide himself with and keep a horse, harness, and suitable wagon for carrying sewing-machines; that he should operate in the territory of “Helena and vicinity only,” which territory he was to diligently work, and in the employment of which he was to be protected by the company from incursions on the part of its other representatives; that he should, for the account of the company, sell machines for cash, or “on notes of responsible parties,” or lease them “on monthly payments to reliable parties,” such notes and leases to be in the name of the company as payee or lessor; that he should indorse as guarantor all such notes and leases; that he should collect all moneys due or to become due for or on
To this contract was attached an instrument called a “security bond,” executed by the respondents at bar, and running to said company specifically, in which it is recited that they “jointly and severally guarantee the fulfillment of the within contract by said B. S. Smith and the payment by him to said company at maturity of all moneys due and to become due” thereunder. This bond, with the contract to which it was attached, was about January 10, 1908, assigned and transferred to the Standard Sewing-machine Company of Ohio, a separate and distinct corporation.
Thereafter, and on January 16, 1908, the Standard Sewing-machine Company of Ohio shipped to Smith a number of sewing-machines to the value of $296. These machines were received and disposed of by Smith, but he “failed to collect and remit to the Ohio company the moneys due upon the same, ’ ’ and “there is still due on account thereof the sum of $206.50,” which amount the Ohio company seeks to recover from the respondents.
These facts, together with others of no present consequence, being made to appear to the district court, it was concluded, as a matter of law, that no contractual relation existed between the appellant and the respondents at bar, that they owed to it no debt, and that judgment should be entered for their costs.
Several questions are sought to be presented, but the vital one is whether the right result was reached upon the facts disclosed by the record. This is to be answered by determining whether the Ohio company acquired any right of action against the present respondents because of the assignment to it of the contract and bond.
1. As to the contract. There is no word or expression in
In the last analysis all the exceptions to the rale of assign-ability arise out of the nature of the contract, and among them are these: Contracts wherein rights are coupled with liabilities, contracts for personal services, and contracts involving the relation of personal confidence. (4 Cyc. 22; Winslow v. Dundom, 46 Mont. 71, 125 Pac. 136.) A glance at the contract in question, or the slightest consideration of the stipulations above recited, will, we think, disclose that it is within all these exceptions; especially does it involve personal service and create the relation of principal and agent. A fair test of its
2. Considering the bond itself, there are further reasons
We are satisfied that upon the facts presented by this record tbe right rule was reached. The judgment and order appealed from are therefore affirmed.
Affirmed.