Fuller v. Favorite Theaters Co. of Salt Lake, 7640
| Decision Date | 23 April 1951 |
| Docket Number | No. 7640,7640 |
| Citation | 230 P.2d 335,119 Utah 570 |
| Parties | FULLER, v. FAVORITE THEATERS CO. OF SALT LAKE. |
| Court | Utah Supreme Court |
Gordon I. Hyde, Salt Lake City, for appellant.
A. W. Sandack, Salt Lake City, for respondent.
After a pretrial hearing in the lower court, the trial judge dismissed the action upon two grounds: First, that the complaint did not state a cause of action; and second, that the cause of action upon which the plaintiff bases his complaint was not assignable. Plaintiff appeals to review that ruling.
From the briefs and the oral arguments, it appears that the court based its ruling on both grounds upon this provision of the contract: 'Sixth: This license shall not be assigned by either party without the written consent of the other, and the sale or transfer by the exhibitor of all or any part of his interest in the theater specified herein shall not relieve him of his obligations hereunder without the written consent of the distributor and its home office in New York City first had and obtained.'
The defendant's assertion is that this clause prohibiting the assignment of the contract also prevented the assignment of a cause of action for a breach of the contract. Plaintiff claims and pleads that before he received his assignment, the defendant had breached the contract giving rise to an action for damages. He bases his claim for recovery upon the right to damages for the breach and not upon the contract itself. With this contention we agree, the provision prohibiting the assignability of the contract itself does not affect the assignability of a cause of action which has arisen from the breach. Williston on Contracts, Rev.Ed., Sec. 412; 6 C.J.S., Assignments, Sec. 31, p. 1080.
The defendant raised for the first time in this court, certain other objections to the plaintiff's right of recovery; that the document referred to by plaintiff and relied on by him is not in fact a contract; that it is lacking in mutuality of obligation; that the provision for liquidated damages was in fact a penalty; and that there was not and could be no breach of the purported contract.
We do not disagree with the point that respondent makes that ordinarily a respondent may urge any matter appearing in the record in support of its judgment. U. S. v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087; LeTulle v. Scofield, Collector, 308 U.S. 415, 421, 60 S.Ct. 313, 84 L.Ed. 355; Town of South Tucson v....
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...for breach of the contract. Restatement (Second) of Contracts Sec. 322(2)(b)(1981). 14 See also Fuller v. Favorite Theaters Co. of Salt Lake, 119 Utah 570, 230 P.2d 335, 336 (1951); Trubowitch v. Riverbank Canning Co., 30 Cal.2d 335, 182 P.2d 182, 185-86 (1947) and cases cited therein. 15 C......
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...322 (1981); 6 Am.Jur.2d Assignments §§ 22, 59 (1999). This rule was adopted by the Utah Supreme Court in Fuller v. Favorite Theaters Co., 119 Utah 570, 230 P.2d 335 (1951) (per curiam). In Fuller, the defendant argued that the plaintiff was prohibited from asserting an assigned breach of co......
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