New England Cabinet Works v. Morris

• Decision Date: 06 March 1917
• Citation: 226 Mass. 246,115 N.E. 315
• Parties: NEW ENGLAND CABINET WORKS v. MORRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 246

115 N.E. 315

NEW ENGLAND CABINET WORKS

v.MORRIS.

Supreme Judicial Court of Massachusetts, Middlesex.

March 6, 1917.

Exceptions from Superior Court, Middlesex County; Charles U. Bell, Judge.

Action by the New England Cabinet Works against Richard H. Morris. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

Defendant's fourth and eleventh requests for instructions are as follows:

Fourth: The executory contract between Mr. Bearce and the defendant, R. H. Morris, for the building and installation of the fixtures for the equipment of the drug store could not be assigned by Mr. Bearce to the New England Cabinet Works to become binding upon the defendant, R. H. Morris, without his consent.

Eleventh: An executory contract to build and furnish fixtures to equip a drug store cannot be assigned to a third party by the person contracting to equip the store with such fixtures so as to bind the party ordering same without the consent of that party.

Whipple, Sears & Ogden, of Boston, for plaintiff.

James J. Irwin, of Boston, for defendant.

RUGG, C. J.

The material facts are that in December, 1912, the defendant made a contract with one Bearce, in whom he reposed special confidence, to design, manufacture and install the fixtures and equipment for a drug store in a building then in process of erection, Bearce to act in accordance with his own ideas of what would be suitable and proper for that store. Bearce was at this time carrying on the business of cabinet-making and manufacturing store furnishings, occupying a factory for this purpose. The design of the store furnishings for the defendant was made in January following by Bearce. The furnishings and fixtures were manufactured and the installation in the store was made in May, 1913, in a manner and at a price with which the defendant finds no fault. On February 13, 1913, the plaintiff made an agreement with Bearce to take over his business and real and personal property connected therewith and to employ Bearce as manager of the factory where the fixtures and equipment furnished to the defendant were being built. On the same day the contract of Bearce with the defendant was ‘turned over’ to the plaintiff by Bearce. On March 8, 1913, Bearce executed and delivered to the plaintiff a bill of sale of ‘the following goods and chattels, namely, machinery, tools and implements, stock of lumber and stock in trade manufactured and unmanufactured, horses, teams, harnesses and equipments, and all books of account, notes receivable and bills receivable, and all appurtenances to the business of store furnishings and cabinet making belonging to me situated upon premises at 11 to 17 Parlin street in said Everett or elsewhere.’

There was evidence tending to show that, in June after the fixturesand equipment were fully installed in the store, one Maxcy, the treasurer and general manager of the plaintiff, said to the defendant that Bearce had left or was about to leave the plaintiff's employ and had stated that there was a balance due on the defendant's store, which was a cash transaction, and that defendant replied that he was sorry he had not been able to pay earlier, that he could not send a check that night, ‘but would be able to fix it up within a week.’ This conversation was denied by the defendant, who testified that he was utterly ignorant of any transfer of his business by Bearce to the plaintiff and did not know of the existence of the plaintiff until after the equipment and fixtures had been set up in the storce, that he had received no bill from the plaintiff, and that in April and in May he made payments on account by checks to Bearce.

There were three counts in the plaintiff's declaration: The first was on a contract between the plaintiff and defendant for building and providing fixtures and placing them in the store; the second was on an account annexed for furnishing the same goods; and the third alleged an assignment by Bearce to it of the contract between Bearce and the defendant and performance of the contract by it.

The trial appears to have proceeded upon the theory that the contract was made between Bearce and the defendant, was partially performed by Bearce, and was then assigned by Bearce without the knowledge or consent of the defendant, to the plaintiff, who completed it without notification to the defendant until it was finished.

[1] The defendant by several requests asked for instruction to the effect that this contract was of such nature that without his consent it could not be assigned to the plaintiff by Bearce.

The defendant's contention, that in this respect Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9, is decisive, cannot be upheld. That case, as is pointed out in Stiff v. Keith, 143 Mass. 224, 225, 9 N. E. 577, did not involve the question of assignment of a contract made with a predecessor in business, but related to a new contract sought to be raised by implication.

The question whether a contract is assignable is one which illustrates the effect of general custom in the development of the law, or rather in the application of the general principles of the common law to changing conditions in the affairs of men. At bottom it is a matter of the intention of the parties. In the days of primitive business, when contracts were simple in nature and small in scope the personal element of the contracting parties was a more important factor than it is in the complicated, extensive and impersonal transactions of the present time. It was said in Arkansas Smelting Co. v. Belden Co., 127 U. S. 379, at 387, 8 Sup. Ct. 1308, 1309 (32 L. Ed. 246):

‘At the present day, no doubt, an agreement to pay money, or to deliver goods may be assigned by the person to whom the money is to be paid or the goods are to be delivered, if there is nothing in the terms of the contract, whether by requiring something to be afterwards done by him, or by some other stipulation, which manifests the intention of the parties that it shall not be assignable. But every one has a right to select and determine with whom he will contract and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman, ‘You have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract.’ Humble v. Hunter, 12 Q. B. 310, 317; Winchester v. Howard, 97 Mass. 303, 305 ;Boston Ice Co. v. Potter, 123 Mass. 28 .'

In the opinion in Delaware County Commissioners v. Diebold Safe & Lock Co., 133 U. S. 473, at 488, 10 Sup. Ct. 399, at 404 (33 L. Ed. 674), occur these words:

‘A contract to pay money may doubtless be assigned by the person to whom the money is payable, if there is nothing in the terms of the contract which manifests the intention of the parties to it that it shall not be assignable. But when rights arising out of the contract are coupled with obligations to be performed by the contractor, and involve such a relation of personal confidence that it must have been intended that the rights should be exercised and the obligations performed by him alone, the contract, including both his rights and his obligations, cannot be assigned without the consent of the other party to the original contract.’

These statements, both written by Mr. Justice Gray, who was chief justice of this court when Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9, was decided, are confirmatory of the principles of that decision and are here adopted as the law. The difficulty arises not from the statement of the governing rule of law, but in its application to different states of fact.

In the case at bar the contract was to design, manufacture and install the furniture and fixtures for a new store. It was an entire contract for an entire price. Manifestly a contract for design involves personal trust and confidence. It demands artistic knowledge, skill and training. The choice of the individual is or may be found to be the decisive consideration. Bearce, however, under his contract with the defendant, was not only to design but also to manufacture the chattels and fixtures designed by him. It has been held generally that where goods are sold by a manufacturer who is not a general dealer, there is an implied condition (in the absence of a contrary custom of the trade or other controlling circumstance) that the goods shall be of the manufacturer's own make. Johnson v. Rayton, Dixon & Co., 7 Q. B. D. 438, 448, 454; British Wagon Co. v. Lea, 5 Q. B. D. 149, 152; Schlessinger v. Forest Products Co., 78 N. J. Law, 637, 76 Atl. 1024,30 L. R. A. (N. S.) 347, 138 Am. St. Rep. 627. That rule applies in connection with the agreement by Bearce to design under the circumstances here disclosed. The manufacture of store fixtures and furniture, not according to stock patterns nor for the general market, but in conformity to special plans and fitted for a particular store, involves something of reliance upon the personal efficiency of the manufacturer when he is also the designer. A contract respecting such manufacture is not a sale but a contract for labor. Goddard v. Binney, 115 Mass. 450, 454,15 Am. Rep. 112. The installation of specially designed and manufactured goods, in connection with all the other factors, can hardly be regarded as separate and distinct from the rest of the contract.

These facts easily distinguish the instant case from assignments of contracts obviously indifferent on any reasonable ground as to the person who may perform them, such as was a contract to clean streets, discussed in ...