Mullen & Junkin v. Byrd & Clopton
| Decision Date | 20 May 1929 |
| Docket Number | 27915 |
| Citation | 122 So. 485,154 Miss. 215 |
| Parties | MULLEN & JUNKIN v. BYRD & CLOPTON |
| Court | Mississippi Supreme Court |
(Division R.)
1. UNITED STATES. Government alone may take advantage of provision forbidding transfer of contract to construct levy work (41 U.S.C. A., section 15).
The provisions of Revised Statutes U.S. section 3737; U.S.C. A title 41, section 15, are for the benefit of the government and where a contract between the Mississippi river commission and a private contractor embodies a clause to preserve the benefits given by statute, without stipulation in the contract that an assignment of the contract will avoid it, such contract is for the benefit of the government, and it, alone may take advantage of such provision.
2. UNITED STATES. Subcontractor cannot defend breach of contract on ground that it was not assignable without having attempted to secure approval of assignment.
Where a contract with the Mississippi river commission is made by a contractor, and such contractor assigns the contract so let to a subcontractor at a profit to the original contractor and the subcontractor does not perform the work, he cannot defend his breach of the contract on the ground that it was not assignable, unless he has offered to get the commission to approve the assignment. In such case, both parties must do what they reasonably can to secure the approval of the commission to the assignment of the contract, and neither can defend on the ground of nonassignability of the contract unless he has done what he could to carry out the contract.
APPEAL from circuit court of Warren county.
HON. E. L. BRIEN, Judge.
Action by Byrd & Clopton against Mullen & Junkin. Judgment for plaintiffs, and defendants appeal. Affirmed.
Judgment affirmed.
L. T. Kennedy, of Natchez, for appellants.
This is an action to recover damages upon the alleged breach of a written contract assigning a written contract with the Mississippi River Commission to do certain work.
Article 12 of the contract, which it is claimed was assigned, reads as follows:
"Neither this contract, nor any interest therein, shall be transferred to any other party or parties, and in case of such transfer, the United States may refuse to carry out this contract either with the transferrer or the transferee, but all rights of action for any breach of this contract by the contractors are reserved to the United States."
Such a contract was not assignable and therefore the parties had no right of action on account of their having assigned the same and were not entitled to any judgment. In 2 Elliott on Contracts, 1437, the following rule is laid down:
Hackett v. Campbell, 159 N.Y. 537; Burke v. Taylor, 152 U.S. 648, 14 S.Ct. 101.
The case of Dulaney v. Scudder, 94 F. 6, is differentiated from the present case by the fact that in that case the contract had been executed.
Brunini & Hirsh, of Vicksburg, for appellants.
Where there was no consent on the part of the United States to the transfer and assignment by the contractor, Byrd & Clopton, of its contract to appellants, Mullen & Junkin. The transfer and assignment of the contract by the contractor was not binding upon appellants, Mullen & Junkin, in view of the fact that the contractor violated Article 12 of the said contract.
It must be carried in mind that this is not a case where the work was completed in full performance of the contract, and the government had made payment, or partial payment, showing its acquiescence in the transfer and assignment of the contract.
It was incumbent upon Mullen & Junkin to test the matter out as to what the government would in fact do if it (Mullen & Junkin) completed the contract.
Burck v. Taylor, 152 U.S. 648, 38 L.Ed. 578; Dulaney v. Scudder, 94 F. 6; Farmers' State Bank v. Riverton Construction Co. (Wyo.), 270 P. 1082; Lay v. Lay, 118 Miss. 549; Fewell v. American Surety Co., 80 Miss. 782, 248 U.S. 24, 63 L.Ed. 103; McGowan v. Parish, 237 U.S. 285, 59 L.Ed. 955; Ball Engineering Co. v. J. G. White, Inc., 283 F. 496; 1 Williston on Contracts, 764; Gross v. Thornson's Estate, 286 Ill. 185, 121 N.E. 600; A. S. Cameron Steam. Pump Works v. Lubbock, etc., Co. (Tex. Civ. App.), 167 S.W. 256; Brindze v. Kuckro, 179 N.Y.S. 69; U. S. Ct., Cl. 1906.
The transfer of a government contract may, at the option of the government, work an annulment of the contract under Revised Statutes 3737 (U. S. Comp. St. 1901, p. 2507), prohibiting the assignment of a contract with the government.
Federal Mfg. & Printing Co. v. U.S. 41 Ct. Cl. 318.
Wm. I. McKay, of Vicksburg, for appellees.
The provisions of Revised Statutes U.S. section 3737, U.S.C. A., Title 41, section 15, are for the benefit of the government and where a contract between the Mississippi River Commission and a private contractor provides that the benefits given by the Statute shall be preserved, without providing in such contract that its assignment will avoid it, such contract is for the benefit of the Government and it alone may take advantage of such provision.
Lay v. Lay, 118 Miss. 549, 248 U.S. 24, 63 L.Ed. 103; Fewell v. American Surety Co., 80 Miss. 782; Dulaney v. Scudder, 94 F. 6; Hegness v. Chilberg, 224 F. 28; Goodman v. Niblock, 102 U.S. 560; Hobbs v. McLean, 117 U.S. 576.
Where a party accepts an assignment of a contract he is estopped from denying its assignability, especially when such objection lies only in the mouth of a third person.
21 C. J. 1110, et seq.; 21 C. J. 1206-07; 21 C. J. 1209.
Argued orally by L. T. Kennedy, for appellant
Byrd & Clopton, a partnership composed of Alonzo L. Byrd and Bettison W. Clopton, filed a declaration in the circuit court, alleging that on October 16, 1924, there had been awarded a written contract by the Mississippi river commission to construct certain specific levee work at and for the price of thirty-eight cents per cubic yard; that said Byrd & Clopton sublet or assigned said contract to Mullen & Junkin, a partnership composed of William C. Mullen, and William J. Junkin, in writing, by which said Mullen & Junkin were to take over and construct said work at a price so as to give Byrd & Clopton two cents per cubic yard profit as compensation for their contract. It was alleged in the declaration that the Mississippi river commission did not object to said subletting or assignment, but acquiesced therein, and that the plaintiffs performed their part of the contract sued on, and that the defendants failed and refused to perform their part of the contract,...
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