Williams v. McWhorter

• Decision Date: 16 October 1923
• Docket Number: 1065
• Parties: WILLIAMS v. McWHORTER
• Court: Wyoming Supreme Court

218 P. 791

30 Wyo. 229

WILLIAMS v. McWHORTER

No. 1065

Supreme Court of Wyoming

October 16, 1923

APPEAL from District Court, Weston County; HARRY P. ILSLEY, Judge.

Action by Charles C. Williams and others against Milton McWhorter and United States Oil & Refining Company, for damages for an alleged breach of contract to drill a well for oil or gas. From a joint and several judgment against defendants the defendant company appeals.

Reversed and Remanded.

Edwin L. Brown for appellant.

The judgment rendered against defendant corporation is unsupported by allegations or proof of liabiilty under the contract; McWhorter entered into a contract with plaintiffs but there was no evidence of an assignment to defendant corporation; evidence of an assignment should be of a positive character; 5 C. J. 1092, as well as its ratification if assigned to a corporation; the contract was one of a character involving personal relations and not assignable except with the consent of all parties thereto; the petition did not show that plaintiffs consented to the assignment certain classes of contracts are non-assignable. 5 C. J. 880. Examples are to be found in contracts for personal service requiring special skill or reposing special confidence; for the splitting of rails; for county printing; 5 C. J. 883-B Campbell v. Sumner County, 64 Kans. 376; 67 P. 886. Evidence of delays for which plaintiffs sought to recover was not competent until it was first shown that the delays were not caused by acts and conditions over which McWhorter had control, or were not caused by acts of providence and physical causes which the first party, or, in the event of a legal assignment, the assignee, could control.

Earl McDonald and David A. Fakler, for respondent.

Appellant succeeded to all of the interests and liabilities of McWhorter under the contract, paid thereon the sum of $ 2100.00 and therefore ratified it; it is estopped by its conduct. 16 Cyc. 680; it is also estopped from denying the assignability of the contract. 16 R. C. L. 989; 13 C. J. 318. The evidence shows that respondents did everything in their power to fulfill every part of the contract and were prevented from completing the same by acts of the appellant respondents suffered damages by the breach; to the extent found by the court.

Edwin L. Brown in reply.

There was no evidence of assignment; estoppel must be pleaded and supported by evidence. Nickum v. Burckhardt, 30 Ore. 464; 60 Am. St. Rep. 822., also 3 Story's E. Jr. 582. Estoppel cannot be raised for the first time on appeal. Boston Co. v. Reed (Colo.) 48 P. 515; Reynolds v. Pascoe, (Utah) 66 P. 1064. There can be no ratification of an act or contract which never existed. 21 C. J. 1113.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

The plaintiffs (respondents), by written contract with Milton McWhorter, one of the defendants, agreed to drill a well for oil or gas on a tract of land in Crook County. The other defendant was the appellant, the United States Oil and Refining Company, a corporation. There is nothing appearing on the face of the contract to indicate that the company was a party to it or intended to be bound by it, and by its terms it bound McWhorter personally and not in any representative capacity. The contract provided, among other things, that McWorter furnish casing necessary to case the well as it was drilled; that he pay $ 6 per foot for the drilling, and $ 60 per day in lieu of damages for all delays in drilling for causes which he might control.

The petition stated two causes of action, but as the judgment is based on the second only, we need not notice the other. The second cause of action was to recover on the contract $ 6 per foot for drilling 615 feet, and $ 60 per day for 55 1/2 days delay occasioned by failure to furnish casing necessary to a continuance of the drilling, a total of $ 7020, less payments of $ 2100. The only allegation of the petition that can be claimed to state a reason for holding the company liable on the contract is "that the defendant Milton McWhorter did assign said contract to said defendant corporation but without the consent or knowledge of these plaintiffs, and that the said defendant corporation made the payments upon said contract as hereinafter set forth and assumed the obligations thereon but not in any way relieving the defendant McWhorter from responsibility to these plaintiffs."

McWhorter made no defense to the action and has not appealed from the judgment. The case was tried upon the petition and the defendant company's separate answer which was in effect a general denial. After a trial without a jury a joint and several judgment was rendered against the defendants upon plaintiffs' second cause of action for the amount demanded by the petition, and the defendant company appeals.

It is apparent from the petition that it was not the theory of plaintiffs that McWhorter, in entering into the drilling contract, was acting as agent for the defendant company. It was not claimed that the company was liable on that contract from the beginning, but it was evidently the purpose of the pleader to charge that the company became bound by some later contract to discharge the obligations originally assumed by McWhorter only. The allegations setting forth this later contract to which the company was a party were, to say the least, quite informal. It was alleged that McWhorter assigned the contract to the company. By such an assignment he may have transferred to the company his rights under the drilling contract without binding his assignee to discharge his duties. Duties under a contract are not in any true sense assignable. 1 Williston on Cont., Sec. 412. However, if a party be bound by a bilateral contract to perform duties which may be delegated, he may assign his rights and also contract with his assignee to perform his duties. It is probable that this was what the plaintiffs intended to plead when they stated in the petition that the company on becoming the assignee of McWhorter assumed his obligations under the drilling contract. It may be noted in passing that it would seem that the only fact alleged was the fact of assignment, and that the statement that the company "assumed the obligations thereon" was a legal conclusion which did not necessarily follow from the fact pleaded. However, we do not care to base our decision on the question of pleading, and our purpose in referring to the petition is to show that under the theory adopted by plaintiffs the existence of a contract whereby the company was bound to discharge the obligations of McWhorter under the drilling contract was a material fact necessary to be established by plaintiffs to entitle them to a judgment against the defendant company. Assuming that the pleading alleged that fact, and assuming, also, that neither the want of privity between plaintiffs and the company, nor the statute of frauds, was an obstacle in the way of a...