Lansden v. McCarthy

• Decision Date: 31 October 1869
• Parties: THOMAS G. LANSDEN et al., Appellants, v. JOHN MCCARTHY, Respondent.
• Court: Missouri Supreme Court

45 Mo. 106

THOMAS G. LANSDEN et al., Appellants,

v.JOHN MCCARTHY, Respondent.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Rankin & Hayden, for appellants.

The contract was assignable. (North v. Turner, 9 Serg. & Rawle, 248; More v. Mazzini, 32 Cal. 92; Hay v. Smith, 49 Barb. 360; Merrill v. Grinnell, 30 N. Y. 594; Jorden v. Gillen, 44 N. H. 424.)

J. F. Conroy, for respondent.

I. The contract was executory, and could not legally be assigned to appellants. (Robson & Sharpe v. Drummond, 2 Barn. & Adol. 303; Leahey v. Dugdale's Adm'r, 27 Mo. 439.)

II. The contract was personal in its character, and, as such, could not be assigned to appellants without the consent of respondent. (Robson et al. v. Drummond, supra.)

CURRIER, Judge, delivered the opinion of the court.

The question here arises upon a demurrer to the petition. The petition shows substantially that the defendant, on the 31st of May, 1864, entered into a written contract with Bedard & Knickerbocker, the plaintiffs' assignors, by which he agreed to furnish to them, at the St. Charles Hotel, in Cairo, Illinois, all the fresh beef, pork, and mutton that might be ordered and required by said Bedard & Knickerbocker or their agents, for the use and consumption of said hotel, for the year then next ensuing, at ten cents per pound, Bedard & Knickerbocker on their part agreeing to pay for the meat so furnished promptly at the end of each successive month during the continuance of said contract.

The petition further shows that the plaintiffs became the proprietors of said hotel on the first of January, 1865, and took an assignment of said meat contract; and that the same was assigned and turned over to them for value, the defendant being notified thereof, and required to continue his deliveries of meat to the plaintiffs, as he had previously done to the plaintiffs' assignors, which the defendant refused to do, although the plaintiffs were willing to assume and perform all the stipulations of said contract obligatory upon their assignors.

The point taken by the demurrer is that the contract sued on was not assignable without the consent and concurrence of the defendant. The plaintiffs' counsel admit the proposition that where an executory contract is founded upon trust and confidence reposed in the character and skill of a particular person, as where an author contracts to write a book, or an artist contracts to paint a picture, the contract is not assignable by the party in whom such trust and confidence is reposed. The principle involved in this concession is fatal to the plaintiffs' case; for the defendant's estimate of the solvency and pecuniary credit and standing of the plaintiffs' assignors may have constituted an important inducement to the contract, without which he never would have entered into it. There was a credit given. The meat was not to be paid for on delivery, but at the end of the successive months, involving credit to an indefinite amount. The amount of meat to be furnished during any given month was not optional with the defendant, but was to be determined by the hotel proprietors, in view of the wants and convenience of the hotel. The contract imposed no obligation upon the defendant to accept as his debtors any other parties than those with whom he contracted. Nor was he under any...