Panhandle Lumber Co. v. Mackay

• Decision Date: 10 October 1927
• Docket Number: No. 5167.,5167.
• Citation: 21 F.2d 916
• Parties: PANHANDLE LUMBER CO., Limited, v. MACKAY.
• Court: U.S. Court of Appeals — Ninth Circuit

21 F.2d 916 (1927)

PANHANDLE LUMBER CO., Limited, v. MACKAY.

No. 5167.

Circuit Court of Appeals, Ninth Circuit.

October 10, 1927.

John P. Gray, of Cœur d'Alene, Idaho, and Turner, Nuzum & Nuzum, of Spokane, Wash., for plaintiff in error.

G. M. Ferris, of Spokane, Wash., for defendant in error.

Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge.

This was an action by a contractor to recover damages for breach of a logging contract. Under the terms of the contract, the contractor agreed to saw, swamp, skid, and otherwise log and deliver all the merchantable timber on certain described lands; to land the logs on the railroad right of way of the lumber company and deck them in such manner as would facilitate loading on the cars, the back end of the skidways to be not more than 65 feet from the track; to cut the logs in such lengths as might be required by the lumber company; to furnish all supplies and equipment; to submit pay rolls on the 15th and last day of each month; to cut the ground clean to the back end of the job as work progressed, the cutting to be done where the lumber company might specify; that on government timber the work should comply with government specifications, rules and regulations, and to deliver all logs on the railroad right of way on or before September 1, 1926. The lumber company, on the other hand, agreed to pay the pay rolls of the contractor, provided the contractor had sufficient credit accrued at the time of payment to take care of all indebtedness due the lumber company, including the pay rolls; to pay the contractor between the 10th and 15th of each month for all logs delivered and scaled during the preceding month at the rate of $6.50 per thousand feet, less any advances, reserving 50 cents per thousand feet on all logs so delivered to secure satisfactory completion of the contract, the reserve to be paid on completion of the work. It is admitted that the contract was terminated some time after the contractor entered upon its performance.

One of the defenses interposed by answer was that, between the date of the execution of the contract and the date of its termination, the contractor, without the knowledge or consent of the lumber company, assigned an interest to or took one Boyer into copartnership with him in the prosecution of the work under the contract, and that, by reason of the contractor so assigning an interest in the contract to Boyer, or taking Boyer into partnership with him, the contract became null and void. The refusal of the court below to submit this defense to the jury is the sole question presented by the writ of error.

The contention of the plaintiff in error is based upon the ground that contracts such as the one in suit are not assignable in whole or in part. As a general rule, all contracts are assignable unless an assignment is forbidden by statute or by the terms of the contract itself. Contracts involving relations of personal confidence and contracts for personal service form an exception to the rule. But the contract in question does not involve relations of personal confidence....