Ross v. Morrimac Veneer Co.

• Citation: 92 So. 823,129 Miss. 693
• Decision Date: 03 July 1922
• Docket Number: 22725
• Court: Mississippi Supreme Court
• Parties: ROSS v. MORRIMAC VENEER CO

92 So. 823

129 Miss. 693

ROSS v. MORRIMAC VENEER CO

No. 22725

Supreme Court of Mississippi

July 3, 1922

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suit by J. L. ROSS against the Morrimac Veneer Company. From a decree dismissing the bill, plaintiff appeals. Reversed. Judgment rendered for plaintiff, and case remanded.

Judgment reversed and remanded.

W. E. Morse, for appellant.

The first question to be considered in this case is, whether or not the contract between the Morrimac Veneer Company and the Henry Maley Lumber Company was assignable. The general rule laid down by the United States supreme court, the court of last resort in this country, Legal Treaties, as J. C. J. and R. C. L. Pomeroy, Equity and Text writers; as Story and Lawson seems to be that executory contracts are assignable unless it involves personal confidence, personal service, or the assignment is forbidden or unauthorized by statute or where the parties expressly make it non-assignable by the terms of the instrument.

This precise question seems never to have been presented to this court. We have assignments and partial assignments but no assignment of executory contracts. We will therefore have to go outside of our state court for precedents. It is a question that seems to be too well settled to admit of dispute, but in case there is any doubt we submit the following authorities: The test of assignability is whether or not it would survive and pass to the personal representative of a decedent. If it would so survive, it may be assigned, so as to pass an interest to the assignee, 5 C J. 850. See note Am. and Eng. Case, 1 Am. case, 854, which is an exhaustive note on the subject of assignability of executory contracts. Contracts silent on the subject are generally assignable. Standard Sewing Machine Co. v Smith, 152, page 38, 51 Mont. 245; Smith v. Craig, 105 N.E. 798, 211 N.Y. 456.

The rule settled by the decisions of the supreme court is that a contract by which one party became obligated to the other is assignable by the latter unless there is something in the terms or nature of the contract which evidences an intention of the parties that it shall not be assignable. (American Bond & Trust Co. v. Q. S.W. P. Co., 124 F. 866, 60 C. C. A. 52; Horst v. Rolhms, 84 F. 566, 44 L.Ed. 953. In other words, the law is too well settled to admit of dispute that an executory contract is assignable. Find v. Henderson, 74 Miss. 8, 19 So. 892.

Assignability of this Contract. The legal proposition of executory contract being assignable, having been established, we then consider whether or not the contract we have here under consideration is assignable or whether or not it falls within any one of the exceptions, and to ascertain this we must look to the contract itself.

The terms of the contract do not prohibit a transfer or assignment of the whole or a part of the contract. The assignment is not prohibited by statute. The contract is not one calling for personal skill, etc., as employment of a physician, musician, actor; the contract is with a corporation and necessarily could not be personal. Pulaski Stave Co. v. Miller Creek Lumber Co., 138 Ky. 374, Bonding & Trust Co. v. Baltimore and O. S. Ry. Co., 124 F. 866, 60 C. C. A. 52; Arkansas case, 135 S.W. 334, Roberts Cotton Oil Company v. F. E. Morse and Co.

The best reasoned case that I have found dealing with assignment of executory contracts is to be found in 15 Ann. Cases, 363, in a case styled: "Atlantic and N. C. R. R. C Co. v. Atlantic and N. C. Company, 147 N.C. 368; Adams v. Wadhams, 40 Barb. (N. Y.) 225; Comstock v. Hitt, 37 Ill. 542; Biggers v. Matthewes, 147 N.C. 299, 61 S.E. 53.

Partial or Equitable Assignments. We think that we have fully demonstrated that this contract was simply a commercial contract, one that could be assigned. This brings us to the proposition that if this contract was assignable in whole that it was assignable in part. The state of Mississippi has recognized partial assignments in the case of C. W. Hutchinson, Gdn., v. L. Simon et al., 57 Miss. 628; Moody v. Kyle, 34 Miss. 506; Fitch v. Stamps, 6 How. 487; 2 Story Eq. Jur., 1044; Lanigan v. Bradley, 50 N.J.Eq. 210, 24 A. 502.

Indiana holds that a part interest in a written contract is assignable in equity. Wood v. Wallace, 24 Ind. 226; Graves v. Ruby, 24 Ind. 418. Partial assignments are upheld by the authorities cited in R. C. L., sec. 27, of assignments 2 R. C. L., page , the rule being stated.

A partial assignment of a chose in action is enforceable in equity, although the debtor has not given his assent, provided that all of the parties in interest are before the court, so that the rights of each in the fund may be determined in one suit and settled by one decree; An equitable assignment of a part of a debt either actually or potentially in existence is valid and vests an equitable interest in the assignee so that, after notice to the debtor he is bound to apply the funds according to the terms of the assignment, regardless of the assent or wishes of the debtor. The note in Ann. Cas. 1912A, page 673, shows the stand of the different courts on the question of partial assignments. Palmer v. Palmer, 91 A. 281; Exchange Bank v. McLoon, 73 Me. 498, 40 Ann. Rep. 388.

R. H. and J. H. and Fulton Thompson, for appellee.

The writer knew nothing of this case until he read the record after it had been filed in this court. The first thought that came to his mind after reading Exhibit "A" to the bill was that the pretended contract was and is without legal effect and is non-enforcible because it is wholly unilateral. While the cancellation of the previous contract between the parties mentioned in the writing may have been a consideration for its execution it can in no other way aid or support the writing as a contract. If the writing be valid at all it is effectual only as a cancellation of the old contract. It will be observed that the Lumber Company did not bind itself in any way; it did not assume any obligation to deliver logs to the Veneer Company and it could not have been compelled to deliver logs to the Veneer Company nor would it have been liable under the alleged contract for damages because of a total or partial failure to deliver them. In this respect the so called contract was wholly unilateral. Kolb v. Bennett Land Co., 74 Miss. 567; Taylor v. Barbour, 90 Miss. 888.

If by any sort of reasoning the complainant can be held to have been, as he claims, an assignee of a part of the contract, Exhibit "A," he can have no greater right under the unilateral contract than his alleged assignor, the Lumber Company had. If the contract was unenforcible by the Lumber Company, of course, it cannot be enforced by the complainant. If complainant were an assignee he was under no more duty to furnish logs to the Veneer Company than was the Lumber Company under such duty by the alleged contract, Exhibit "A."

If anything passed to complainant from the Lumber Company by the use of the word "sells" it was nothing more than the right to deliver logs to the Veneer Company in order to perform in part the assumed obligations of the Lumber Company to the Veneer Company; there was no sale, in whole or in part, of the original contract, Exhibit "A" to the bill of complaint, or of anything due or to become due under it.

The Veneer Company was not a party to the contract (Exhibit "B" to the bill of complaint) and is not bound by its terms, whatever they mean; its terms do not purport to bind our client. The obligations assumed by the complainant in and by said contract (Exhibit "B") do not bind him in any way to the Veneer Company; the complainant's obligations therein assumed were alone to the Lumber Company. Whitney v. Cowan, 55 Miss. 626.

The complainant does not claim that the contract, Exhibit "B" was a perfect assignment by the Lumber Company to him of the contract between the Lumber Company and the Veneer Company. His erroneous claim is that it was an assignment of a part of that contract, and he further erroneously claims as we think that such an assignment is valid and enforcible in equity as against both the assignor and the debtor.

We do not understand that even in equity a partial assignment is valid against the debtor or obligor of the contract so assigned who has fully paid the debt or performed his obligation to his original creditor, or persons to whom he bound himself, unless he has acknowledged the assignment and promised to pay or perform his obligation to the assignee.

Answer to Appellant's Brief. The arguments we have already made in the preceding pages of this brief very largely answer the brief filed by the solicitors for the appellant. However, we will make some further observation in the way of a reply. The appellant tells us in his brief that the main question involved in this case is whether the alleged contract, Exhibit "A" to the bill of complaint, is an assignable one. This is to beg the question involved in the case, because, so far as the question of an assignment is concerned the real question is, was the alleged contract Exhibit "A" to the bill of complainant assigned? We say not.

We do not deny the general proposition that the alleged contract Exhibit "A" to the bill of complaint, was assignable. It certainly was assignable by the consent of the Veneer Company, but a very different proposition is presented when it is claimed that said alleged contract could be assigned in part without the consent of the Veneer Company. An assignment in part by such consent would have been equivalent to a separation of the contract, a modification of it, reducing the number of feet of logs to be delivered, if any were to be delivered by the Lumber Company, and the making of a...