Ford v. Robertson
| Decision Date | 15 July 1987 |
| Citation | 739 S.W.2d 3 |
| Parties | Oscar Daniel FORD and Nona R. Ford, Plaintiffs-Appellants, v. Joe F. ROBERTSON, et al., Defendants-Appellees. 739 S.W.2d 3 |
| Court | Tennessee Court of Appeals |
John J. Mulrooney, Parrish & Mulrooney, Memphis, for plaintiffs-appellants.
Deborah B. Walls, Wilson, McRae, Ivy, Sevier, McTyier & Strain, Memphis, for defendants-appellees.
Eugene J. Podesta, Jr., Memphis for Joe F. Robertson.
The dispositive issue in this case is whether rights of an owner resulting from breach of contract of a fully executed contract with an architect may be assigned by the owner absent the consent of the architect where the owner-architect contract provides that "neither the owner nor the architect shall assign, sublet or transfer any interest in this agreement without the written consent of the other." 1
The owner, Joe F. Robertson, entered into a standard American Institute of Architects Contract with the Architects, Yeates-Gaskill-Rhodes, Architects, Inc., for the latter to perform architectural services in connection with the renovation of seventy-two apartment units.
The contract contained the following provision:
The Owner and the Architect, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither the Owner nor the Architect shall assign, sublet or transfer any interest in this Agreement without the written consent of the other.
On June 12, 1981, the Architects issued a Certificate of Substantial Completion certifying that the renovation was sufficiently complete, in accordance with the Consent Documents, so that the apartments would be occupied for the use for which they were intended. The Architects were paid in full and their contract fully executed.
The owner then sold the apartments to plaintiffs, executing a "Warranty Deed, Bill of Sale and Blanket Assignment." This instrument, in addition to warranting title and quiet possession of the apartments to plaintiffs, includes the following provision:
3. Grantor's right, title and interest in and to all leases and other contracts (including, without limitation, all warranties, guaranties and bonds,) affecting the property described in the foregoing paragraphs 1 and 2.
After purchasing the apartment units on August 20, 1981, the plaintiffs became dissatisfied with the condition of the units and filed suit against Robertson, the Architects and others on April 8, 1983. The plaintiffs specifically sued the Architects for damage for breach of contract by certifying that work required to be performed pursuant to the rehabilitation contracts was performed and completed when such work was neither performed nor completed; negligence in planning, supervising and approving the construction work required by the rehabilitation contracts; and breach of warranties of substantial completion, habitability and reasonable fittness for the intended purpose.
The trial court sustained a motion for summary judgment on behalf of the Architects. The statement of the court for its action in part was "that the terms of the contract should be given effect, thus making the assignment of the contract from the Robertsons to the Fords invalid."
We conclude from the language used by Robertson to effect the conveyance and assignment that he conveyed not only his fee simple interest in the property but also he conveyed and assigned every right and interest of whatever kind he had in the property.
We also conclude that under the circumstances of this case that if Robertson was entitled to recover damages from the Architects for breach of contract that he could assign this right to plaintiffs and that they may enforce this right that Robertson previously possessed. The law draws a distinction between the right to assign performance under a contract and the right to receive damages for its breach. The nonassignability clause prohibits the assignment or transfer of any "interest in this agreement." This "any interest" language must be construed to mean any interest in the performance of the executory contract.
Plaintiffs contend, and we agree, that this is a suit for damages for breach of a fully...
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U.S. Industries, Inc. v. Touche Ross & Co.
...no other assignment shall be made by any party without the prior written consent of the other.322 R. 16,539.14 Accord Ford v. Robertson, 739 S.W.2d 3, 5 (Tenn.App.1987); Paley v. Cocoa Masonry, Inc., 433 So.2d 70, 70 (Fla.App.1983); Cordis Corp. v. Sonics Int'l, Inc., 427 So.2d 782, 783 (Fl......
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...Inc., 433 So.2d 70, 70-71 (Fla.Dist.Ct.App.1983); Grady v. Commers Interiors, Inc., 268 N.W.2d 823, 825 (S.D.1978); Ford v. Robertson, 739 S.W.2d 3, 5 (Tenn.Ct.App.1987); Restatement (Second) of Contracts § 322 (1981); 6 Am.Jur.2d Assignments §§ 22, 59 (1999). This rule was adopted by the U......
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Elzinga & Volkers, Inc. v. LSSC CORP.
...at 449, 519 N.E.2d at 39 (1988); Mears Park Holding Corp. v. Morse/Diesel, Inc., 427 N.W.2d 281, 283 (Minn.App.1988); Ford v. Robertson, 739 S.W.2d 3, 5 (Tenn.App.1987) (stating that the law distinguishes between the right to assign performance and the right to assign damages for breach); G......
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Smith v. Cumberland Group, Ltd.
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