Opinion
November 22, 1907.
Louis Pleshet, for the appellant.
Alfred A. Shlickerman, for the respondents.
The pleadings were oral, the complaint being for labor and materials furnished; the answer, a general denial.
The plaintiff's complaint was based on two causes of action, one to recover a balance of seventy dollars under a contract subsequently assigned to the plaintiff, made by the defendants and one Jacob Aaronson for the performance, at the consideration of one hundred and sixty-five dollars, of certain painting, decorating and whitewashing in a certain house belonging to the defendants on Saratoga avenue; the other, to recover the agreed price, forty-five dollars, for certain extra work performed for the defendants by the plaintiff.
The assignment to the plaintiff of the contract with all "right, title and interest" therein by Aaronson for the consideration of one-half of the profits was received in evidence. The defendants claim that they had no knowledge of the assignment of the contract by Aaronson to the plaintiff, that they did not assent thereto and furthermore that the contract between the original parties is not assignable for the reason that, since the subject of the agreement was personal services, another person could not be substituted for their performance. The defendants also state in their answer that the facts (which are not disputed) that three of the four payments were made direct to Aaronson himself subsequent to the date of the alleged assignment of the contract to the plaintiff, that the receipts for the said three payments were given by Aaronson, and that the other payment of five dollars, the only one made to the plaintiff in person, was made to him for Aaronson, and that the receipt therefor, at the demand of the defendants, was given by the plaintiff in the name of Aaronson, disprove their assent to and their knowledge of the assignment.
I have read the evidence with great care and cannot but conclude, in view of the several important contradictions in the defendants' testimony, that the defendants were not only aware that the agreement had been assigned by Aaronson to the plaintiff but that they fully assented thereto. This was borne out by the testimony of the plaintiff's witnesses Goldberg and Kurss, who, while in his employ and being in the same room with the plaintiff and the defendants, heard the assent of the latter to the assignment of the contract to the plaintiff as well as the statement by the defendants that they were satisfied with the new arrangement and with the substitution of the plaintiff for Aaronson. Aaronson himself testified to the same effect, and the defendants' denial, which is self-contradictory at almost every point, seems altogether insufficient to support their contention. The witness Aaronson also testified that the checks received by him for the work done in pursuance of the contract were all delivered to and indorsed by the plaintiff, and that he informed the defendants that such payment was for the plaintiff. In consideration of this testimony the failure of the defendants to produce the checks in the case is significant of the weakness of their position.
In view of these facts I do not see that the plaintiff failed to establish his causes of action. It is the rule that in case of nonsuit the party nonsuited is entitled to the most favorable inference deducible from the evidence and that the contested facts are to be presumed in his favor. ( Higgins v. Eagleton, 155 N.Y. 466.) The plaintiff was, therefore, entitled to a determination of the rights of the parties upon the merits, and the court was plainly in error when it dismissed the plaintiff's action.
It also appears that there was a substantial performance of the contract by the plaintiff and that the extra work was done by him according to agreement. That the contract calling for the performance of certain painting, decorating, whitewashing and wall-paper work was assignable is established by many authorities. In Devlin v. Mayor ( 63 N.Y. 17) Judge ALLEN says: "When the contract is executory in its nature, and an assignee or personal representative can fairly and sufficiently execute all that the original contractor could have done, the assignee or representative may do so and have the benefit of the contract." Thus a contract to build a steamboat, to erect a synagogue and to build a railroad has been held to be assignable; for it is plain, as in the case at bar, that such contract involves no personal confidential relation and no exceptional personal skill or knowledge the requirement of which alone would make a case non-assignable. As was said by Chief Judge CULLEN in New York Bank Note Co. v. Hamilton Bank Note Co. ( 180 N.Y. 291) : "The general rule is that an executory contract not necessarily personal in its character, which can, consistent with the rights and interests of the adverse party, be sufficiently executed by the assignee, is assignable in the absence of agreement in the contract." However, the evidence clearly established the knowledge and the consent of the defendants to such assignment, and the objection of the plaintiff to the testimony by the defendants and by the witness Loketz in reference to certain conversations at the time of or prior to the making of the contract should have been sustained, for it must be presumed that such alleged oral agreements or negotiations were merged in the written instrument.
The judgment should be reversed and a new trial ordered, costs to abide the event.
JENKS, HOOKER, GAYNOR and RICH, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.