Grady v. Commers Interiors, Inc., No. 12253
| Court | South Dakota Supreme Court |
| Writing for the Court | DUNN |
| Citation | 268 N.W.2d 823 |
| Parties | Leo I. GRADY, d/b/a Grady Construction Company, Plaintiff and Appellant, v. COMMERS INTERIORS, INC., Defendant and Respondent. |
| Decision Date | 03 August 1978 |
| Docket Number | No. 12253 |
Page 823
and Appellant,
v.
COMMERS INTERIORS, INC., Defendant and Respondent.
Decided Aug. 3, 1978.
Page 824
T. R. Pardy of Mumford, Protsch, Sage & Pardy, Howard, for plaintiff and appellant.
John L. Foley of Foley & Foley, Watertown, for defendant and respondent.
DUNN, Chief Justice.
This is a contract action in which the plaintiff alleges that the defendant breached a contract for carpet installation which had been assigned to the plaintiff. The defendant relies on a contract provision forbidding assignment of the contract unless written consent is obtained from the defendant. The Circuit Court for the Fourth Judicial Circuit, sitting without a jury, found for the defendant. We reverse the judgment and remand for the purpose of making further findings.
On February 9, 1972, the defendant, Commers Interiors, Inc., entered into a contract with Paul Klapprodt, doing business as Tri-State Floor Crafters, whereby Mr. Klapprodt was to install 5,456 yards of carpet in Sioux Valley Hospital. Paragraph (X) of the contract states that the sub-contractor agrees:
"Not to assign or sub-let this Sub-Contract or any part thereof and not to assign any money due or to become due hereunder without first obtaining the written consent of the Contractor thereto."
Mr. Klapprodt was having financial trouble subsequent to this date, and he contacted Mr. Grady, the plaintiff, about purchasing the contract from him. Mr. Grady agreed to buy it if Commers Interiors, Inc., would approve. Mr. Grady testified that he talked by telephone with Fred Commers, President of Commers Interiors, Inc., who welcomed the assignment and told Mr. Grady that he would send a letter agreeing to put Mr. Grady's name on future disbursements and approving the assignment.
Fred Commers did not testify, but his brother Joseph, Vice President of Commers Interiors, Inc., did. His version of the arrangement was that he thought Mr. Grady was going to give Mr. Klapprodt financial backing, not that he was taking over the contract. The record contains the following items:
(1) a letter from Joseph Commers dated April 11, 1972, agreeing to add Grady's name to any disbursements toward the carpet installation;
(2) a letter from Joseph Commers to Grady on April 12, 1972, listing the number of yards of carpet needed and the amount of adhesive ordered;
(3) a letter from Fred Commers to Henry Carlson Co. in August 1972, concluding, "You may feel free to notify our subcontractor Grady Construction Company and Paul Klapprodt to proceed with the room installation," and
(4) a copy of the assignment agreement from Klapprodt to Grady, which Joseph Commers admitted was sent to him and kept in the office files.
Neither Mr. Grady nor Mr. Klapprodt was called when the time came to do the carpeting work, apparently because of some problem with Mr. Klapprodt's seaming layout. Since the trial court did not determine whether a breach had occurred, the reason for ignoring Klapprodt and Grady is not
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SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., No. 990869.
...F.2d 118, 124 (8th Cir.1944); Paley v. Cocoa Masonry, 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 Assign......
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U.S. Industries, Inc. v. Touche Ross & Co., Nos. 84-1564
...433 So.2d 70, 70 (Fla.App.1983); Cordis Corp. v. Sonics Int'l, Inc., 427 So.2d 782, 783 (Fla.App.1983); Grady v. Commers Interiors, Inc., 268 N.W.2d 823, 825 15 While acknowledging the general rule, defendants contend that it does not apply to the present case. The claims related to the 197......
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Elzinga & Volkers, Inc. v. LSSC CORP., No. 1:93CV294.
...law distinguishes between the right to assign performance and the right to assign damages for breach); Grady v. Commers Interiors, Inc., 268 N.W.2d 823, 824 (S.D.1978) (citing Trubowitch and 6A C.J.S. Assignments). In the present situation all the work had been performed and the money paid ......
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Elzinga & Volkers, Inc. v. LSSC CORP., No. 1:93CV294.
...law distinguishes between the right to assign performance and the right to assign damages for breach); Grady v. Commers Interiors, Inc., 268 N.W.2d 823, 824 (S.D.1978) (citing Trubowitch and 6A C.J.S. Assignments). In the 852 F. Supp. 690 present situation, all the work had been performed a......
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SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., No. 990869.
...F.2d 118, 124 (8th Cir.1944); Paley v. Cocoa Masonry, 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 Assign......
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U.S. Industries, Inc. v. Touche Ross & Co., Nos. 84-1564
...433 So.2d 70, 70 (Fla.App.1983); Cordis Corp. v. Sonics Int'l, Inc., 427 So.2d 782, 783 (Fla.App.1983); Grady v. Commers Interiors, Inc., 268 N.W.2d 823, 825 15 While acknowledging the general rule, defendants contend that it does not apply to the present case. The claims related to the 197......
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Elzinga & Volkers, Inc. v. LSSC CORP., No. 1:93CV294.
...law distinguishes between the right to assign performance and the right to assign damages for breach); Grady v. Commers Interiors, Inc., 268 N.W.2d 823, 824 (S.D.1978) (citing Trubowitch and 6A C.J.S. Assignments). In the present situation all the work had been performed and the money paid ......
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Elzinga & Volkers, Inc. v. LSSC CORP., No. 1:93CV294.
...law distinguishes between the right to assign performance and the right to assign damages for breach); Grady v. Commers Interiors, Inc., 268 N.W.2d 823, 824 (S.D.1978) (citing Trubowitch and 6A C.J.S. Assignments). In the 852 F. Supp. 690 present situation, all the work had been performed a......