Leader Printing Co. v. Lowry

• Citation: 9 Okla. 89,1899 OK 121,59 P. 242
• Parties: LEADER PRINTING CO. v. ROBERT LOWRY et al
• Decision Date: 07 November 1899
• Court: Supreme Court of Oklahoma

1899 OK 121

59 P. 242

9 Okla. 89

LEADER PRINTING CO. v. ROBERT LOWRY et al

Supreme Court of Oklahoma

Decided: November 7, 1899

SYLLABUS

¶0 1. PRINTING--Assignment of Contract. A contract entered into by the governor of Oklahoma with a private partnership, under the provisions of section 1, art. 1, ch. 29, Sess. Laws Oklahoma, 1897, is an assignable contract, and a corporation to whom such contract has been assigned may maintain an action to compel, by mandamus, the officers of one of the territorial colleges to furnish it with the copy for the printing for such college. Such a contract does not involve such an element of confidence or trust as will render it non- assignable.

2. SAME--Bond--Sureties--Liability of. The sureties on a bond given as required by section 2, art. 1, ch. 29,--the act referred to above, for the faithful performance of the contract provided for in section 1 of said act, are not discharged by an assignment of the contract. They remain liable for the performance of the contract after its assignment the same as before.

3. PLEADING--Corporate Existence Presumed--Demurrer--Plea in Abatement. It is not necessary for a plaintiff corporation, in bringing a suit, to allege that it is a corporation. Its legal capacity to sue will be presumed in law until the contrary is made to appear; and, unless it affirmatively appears from the face of the petition that the plaintiff has no legal capacity to sue, such question cannot be raised by a demurrer. The point that plaintiff is not a corporation should be rased by a special plea in the nature of a plea in abatement. If it is not so raised before pleading to the merits, the question is waived. By pleading to the merits, a defendant admits plaintiff's capacity to maintain the action.

Error from the District Court of Payne County; before Jno. H. Burford, District Judge.

Dale & Bierer, for plaintiff in error.

Harper S. Cunningham, Attorney General, and Fred M. Elkin, for defendants in error.

Action by the Leader Printing company against Robert A. Lowry and others. Judgment for defendants, and plaintiff brings error. Reversed.

BURWELL, J.:

¶1 On April 3, 1897, the governor of Oklahoma entered into a written contract with Roy V. Hoffman and William Blincoe, partners doing business under the firm name and style of Hoffman & Blincoe, under the provisions of article 1, ch. 29, Sess. Laws Oklahoma, 1897, for the territorial printing for the period of two years from said date. The section referred to is as follows:

"Section 1. The governor of the Territory is hereby authorized and directed to enter into a contract, in the name of the Territory, with some responsible person, partnership or private corporation, to do all printing, binding, stereotyping, and to furnish all stationery of whatever character which is paid for out of the territorial treasury, the treasury of the board of regents of any of the territorial institutions, or from the territorial school land fund, for a period of two years from and after the 15th day of March, A. D. 1897; and every territorial officer having work of this nature to be done, or stationery to be purchased during the life of said contract, shall furnish the copy to, and have the same done by the party named in said contract. Any warrant drawn by the auditor to any other person or corporation for printing or stationery than the person named in said contract, or his assigns, during the two years above specified, shall be absolutely void."

¶2 At the time of the execution of this contract Hoffman & Blincoe executed and delivered to the Territory a bond as required by section 2, ch. 29, (Sess. Laws 1897,) which section reads:

"The person, partnership or corporation that may be contracted with, as provided in section 1 of this act, shall execute to the Territory of Oklahoma a good and sufficient bond, with at least three satisfactory sureties, in the sum of five thousand dollars, conditioned for the faithful and prompt performance of his contract. Said bond shall be approved by the governor and filed with the auditor of the Territory."

¶3 The bond executed by Hoffman & Blincoe was duly approved by the governor, and filed with the proper officer, and they were given the territorial printing. Some time later they assigned this contract to the Leader Printing company, and the printing was given to it for a considerable time, but finally defendants refused to furnish copies to plaintiff to do the printing for the Agricultural and Mechanical college of Oklahoma. The Leader Printing company, plaintiff herein, then brought this suit, praying that defendants be enjoined from giving the printing for the college to any one other than the plaintiff, and also praying that they be compelled, by mandamus, to deliver the copy for printing for the college to plaintiff. An alternative writ of mandamus and restraining order were issued by the district judge. The attorney general of Oklahoma and Mr. Fred M. Elkin, on behalf of the defendants, filed a motion to quash the alternative writ. On the hearing of this motion the district court quashed the alternative writ of mandamus, and set aside the restraining order; from which ruling the plaintiff appeals to this court, praying a reversal of the judgment of the court below.

¶4 The questions presented in this case have never been before this court. Therefore we have searched the authorities with care in the hope that we might find them definitely settled by other courts. But, notwithstanding there are many cases which bear upon the first two questions considered, we have only found one or two which decide the particular questions involved herein. These we will refer to later in this opinion.

¶5 It is contended by the defendants that the contract entered into between the governor and Hoffman & Blincoe was a personal contract, and could not be by them assigned to the Leader Printing company, except with the knowledge, consent, and approval of the governor; and that plaintiff has no cause of action against the defendants,--citing many authorities in support of their contention. These authorities, however, only go to the extent of holding that contracts conferring rights coupled with liabilities, or which are founded upon relations of personal confidence and trust, or contemplate a moral or mental worth, or peculiar skill or ability of the party contracted with, can be assigned only by agreement of all parties thereto. We entertain no doubt that a contract which involves these elements--that is, where they are the controlling elements of the contract--cannot be assigned without the consent of all of the parties; but when this is given, and the bond for its faithful performance surrendered,--except, possibly, under some peculiar circumstances,--it really amounts to a new contract. Still, as to whether the consent by all of the parties to the assignment of a contract amounts to a new contract, to a very great extent depends upon the circumstances of each case. The defendants contend that the statute under which the governor made the contract vests a discretion in him; that it directs him to contract with some "responsible" person; that he alone, under the statute, can select this person; and that the contract is founded upon relations of confidence and trust.

¶6 This contention is not sustained by the authorities. It cannot, from the contract, or circumstances surrounding the same, be said that the governor expected Hoffman & Blincoe to personally set the type and do the printing. There is nothing in the statutes or the language of the contract which excludes the idea of this work being performed by others, and, if there is not, and the parties can do the work by agents, then they can assign the contract as a whole to any one else.

¶7 The case of Devlin v. Mayor, etc., 63 N.Y. 8, is in point and strongly supports this view. The court in that case had before it the question of the assignability of a contract made by the city of New York for cleaning streets. In discussing this case the court said:

"The circumstance that by the statute in this case the contract was to be awarded as the common council should deem for the best interests of the city does not distinguish this case from those referred to. This provision did not refer to the person of the contractor, but to the terms of the contract. It was not intended to enable the common council to be a respecter of persons, and to give the contract to favorites, but to give them a discretion to choose between different proposals, relieving the authorities from the necessity of awarding the contract to the lowest bidder, irrespective of the terms of the contract, the security offered, or the fairness or sufficiency of the compensation to insure performance with reasonable certainty. This statutory provision does not change the character of the work, or import into the contract any unusual terms, or destroy its assignability. * * The assignability of a contract must depend upon the nature of the contract and the character of the obligations assumed, rather than the supposed intent of the parties, except as that intent is expressed in the agreement. Parties may, in terms, prohibit the assignment of any contract and declare that neither personal representatives nor assignees shall succeed to any rights in virtue of it, or be bound by its obligations. But, when this has not been declared expressly or by implication, contracts other than such as are personal in their character--as promises to marry, or engagements for personal services requiring skill, science, or peculiar qualifications--may be assigned, and by them the personal representatives will be bound. * * When the contract is executory in its nature, and an assignee or personal representative can fairly or sufficiently execute all that the original contractor could have done, the assignee or representative may do so, and have the benefit of the contract."

¶8 In Carter v. State, 8 S.D. 153, 65 N.W. 422, the...