Opinion
March Term, 1901.
William E. Bennett and Edgar T. Brackett, for the plaintiff, appellant-respondent.
John L. Henning, for the defendant, respondent-appellant.
Under the contract between the plaintiff and Thomas I. Stoner of April 28, 1899, there was no obligation resting upon Stoner other than to purchase at least $25,000 net in paper hangings, as provided by the contract, and to pay therefor as provided therein. The contract is not a personal one in the sense that Stoner was bound to perform in person. Stoner had a right to assign the contract, or in case of his death his executors or administrators would have succeeded to his rights and liabilities under the contract. The obligations of Stoner under the contract could have been discharged by any one. If the assignment was made without the consent of the plaintiff, the obligations of the contract would still have rested upon Stoner, and resort could have been had to him for the fulfillment of the contract if the same had not been carried out and discharged by his assignee. ( Rochester Lantern Co. v. Stiles Parker Press Co., 135 N.Y. 209. ) An assignment of the contract by parol was sufficient to transfer the same to the defendant. ( Hooker v. Eagle Bank, 30 N.Y. 83; Doremus v. Williams, 4 Hun, 458; Risley v. Phenix Bank, 83 N.Y. 318; S.C., 111 U.S. 125; Marcus v. St. Louis Mutual Life Ins. Co., 68 N.Y. 625; Epstein v. United States Fidelity Guaranty Co., 29 Misc. Rep. 295.) At the time of the trial an actual written transfer of the contract had been executed and delivered, and plaintiff will not be prejudiced by an adjudication of the rights between the parties to this action under the contract. ( Sheridan v. Mayor, 68 N.Y. 30.) The defendant claims, and Stoner testified on the trial, that the contract was assigned by parol and that the contract itself was actually delivered to the defendant before the commencement of the action. The decision of the trial court holding as a matter of law that the contract had not been assigned was, therefore, erroneous. The questions as to whether the contract of April 28, 1899, had been released and abandoned by the parties interested therein, whether the plaintiff had assented to an assignment thereof from Stoner to the defendant, as well as the question whether an assignment had in fact been made by parol and the contract delivered to defendant with intent to pass the title thereto, were questions of fact that should have been submitted to the jury. The contract in regard to making the samples of paper hangings by the plaintiff for the defendant was not in writing. The plaintiff contended that the defendant agreed to pay for the samples, but that it was agreed in connection therewith that in case the defendant gave to the plaintiff a further order for not less than $15,000 of paper hangings, which order should be for at least 15,000 rolls of blanks and 10,000 rolls of gilts, no payment should be made for the samples. Plaintiff further contended that it had not received an order for paper hangings to the amount of at least $15,000 under such agreement, and that it is entitled to recover for the value of the samples, and evidence was received tending to substantiate its contention. The defendant contended that it never agreed to pay for the samples, but that it did agree to give to the plaintiff an order large enough so that the plaintiff could afford to make the samples for nothing, and that it was stated that such order should be for at least 10,000 rolls of blanks and 5,000 rolls of gilts, and that upon such statement the plaintiff agreed to make the samples for nothing.
The defendant further claimed that it gave to the plaintiff an order in compliance with said agreement, and evidence was received tending to substantiate its contention. The defendant also contended that the plaintiff by entering into the agreement with the Continental Wall Paper Company put itself in a position where it was unable to fill any order given to it by the defendant, and that the officers of the defendant stated to it that they could not ship any goods to the defendant under the said contracts with it. At the close of the trial, after dismissing the counterclaim of the defendant, the court submitted to the jury the question relating to the claim of the plaintiff under its complaint, in a charge fairly presenting the contention of the parties. No exception was taken to the charge. The determination of the jury in favor of the defendant should not be disturbed. That part of the judgment entered upon the verdict affirmed, and that part which dismisses the counterclaim reversed and new trial granted, with costs to the defendant to abide the event.
All concurred, except KELLOGG, J., dissenting, and SMITH, J., not voting.
That part of the judgment entered upon the verdict affirmed, and that part which dismisses the counterclaim reversed and new trial granted thereon, with costs to the defendant to abide event.