Turner v. Wells

• Decision Date: 05 March 1900
• Citation: 45 A. 641,64 N.J.L. 269
• Parties: TURNER et al. v. WELLS et al.
• Court: New Jersey Supreme Court

45 A. 641

64 N.J.L. 269

TURNER et al.

v. WELLS et al.

Court of Errors and Appeals of New Jersey.

March 5, 1900.

(Syllabus by the Court.)

Error to supreme court.

Action by John F. Turner and others against Mark P. Wells and others. Judgment for defendants. Plaintiffs bring error. Reversed.

Thompson & Cole, for plaintiffs in error.

W. M. Clevenger, for defendants in error.

DIXON, J. The circumstances of this case are as follows: On December 20, 1898, the defendants entered into a contract with James F. Levering whereby Levering became bound to supply the materials for, and to do the brick and concrete work upon, a building in Atlantic City, which the defendants had agreed to construct, and the defendants became bound to pay him therefor $2,000 in the manner and on the terms specified in the contract. On March 23, 1899, Levering executed a written assignment to the plaintiffs, to whom he was indebted, of the moneys due and to grow due to him on that contract, and on the same day the plaintiffs served a copy of the assignment on the defendants, to which the latter made no objection. At that time Levering had not fully completed his work, but on April 29, 1899, the defendants paid $45 for cleaning and painting, which, as one of the defendants testified for the plaintiffs at the trial below, was for finishing Levering's work. On May 27, 1899, the plaintiffs began this suit for the money owed by defendants as a final payment on the Levering contract, and at the trial proved by the testimony of one of the defendants that the unpaid balance of the contract price was $729.46. On this evidence the trial justice ordered a verdict in favor of the plaintiffs for that sum, on which direction an exception was sealed for the defendants. The consequent judgment is now before this court for review.

The grounds on which the judgment is assailed are substantially twofold; the first being that, by the terms of the contract between Levering and the defendants, the assignment to the plaintiffs was invalid. The contract provides that "the final payment * * * will be paid to the said James F. Levering, his executors, administrators, or assigns, upon," etc. "* * * It is further distinctly agreed that the said [Levering] shall not assign this contract, or any interest therein or part thereof, or any right to any of the moneys to be paid him thereunder, and that any such assignment shall, at the option of the [defendants], be null and void." Whether, in view of the amendment of our practice act approved March 4, 1890 (2 Gen. St. p. 2591), which enacts "that all bills, bonds and other writing, whether sealed or not, containing any agreement for the payment of money, * * * and all other choses in action arising on contracts, shall be assignable at law, and the assignee or assignees may sue thereon in his, her or their own name," and the general rule that a contract made in contravention of a statute is void and cannot be enforced, a stipulation for the absolute nonassignability of money due or to grow due under a written contract would be valid, need not now be decided, for the present stipulation is not of that nature. Construing all the language of the provision, the meaning plainly is that an assignment would be void at the option of the defendants. It was valid unless they chose to annul it. The time for the exercise of their option was on March 23d, when the plaintiffs served on them a copy of it, or within a reasonable time thereafter. Their failure to do so then, or at any time before May 27th, when suit was begun, precluded its subsequent exercise. Grigg v. Landis, 21 N. J. Eq. 494, 509; Burnett v. Mayor, etc., 31 N. J. Eq. 341, 352.

The other ground for attacking the judgment is that the defendant, who testified to the balance of the contract price, testified also that the sum was not due Levering, because his contract was not finished. The bill of exceptions makes it manifest that the reason for thus denying the completion of the contract was the fact that no releases had been tendered under the following clause of the agreement: "The final payment * * * will be paid * * * upon a full compliance with this contract, and upon a complete release of liens for all materials furnished and for all work done, and an absolute release from claims of any kind that might result in the performance of this contract, being furnished to and accepted by the [defendants]." The plaintiffs offered no evidence that such releases had been furnished, but, on the contrary, when the defendants' counsel asked on cross-examination whether any releases had been furnished, the plaintiffs' counsel objected, and the...