Arkansas Smelting Co. v. Belden Co., 127 U.S. 379 (1888)
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Scribd Government DocsArkansas Smelting Co. v. Belden Co., 127 U.S. 379 (1888)
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Scribd Government Docs8 S.Ct.
1308
127 U.S. 379
32 L.Ed. 246
ARKANSAS VALLEY SMELTING CO.
v.
BELDEN MIN. CO.
May 14, 1888.
[Statement of Case from pages 379-381 intentionally omitted]
R. S. Morrison, T. M. Patterson, and C. S. Thomas, for plaintiff in error.
[Argument of Counsel from pages 381-387 intentionally omitted]
Mr. Justice GRAY, after stating the facts as above, delivered the opinion
of the court.
If the assignment to the plaintiff of the contract sued on was valid, the plaintiff
is the real party in interest, and as such entitled, under the practice in Colorado,
to maintain this action in its own name. Rev. St. 914; Code Civil Proc. Colo.
3; Steel Co. v. Lundberg, 121 U. S. 451, 7 Sup. Ct. Rep. 958. The vital
question in the case, therefore, is whether the contract between the defendant
and Billing & Eilers was assignable by the latter, under the circumstances
stated in the complaint. At the present day, no doubt, an agreement to pay
money, or to deliver goods, may be assigned by the person to whom the money
is to be paid or the goods are to be delivered, if there is nothing in the terms of
the contract, whether by requiring something to be afterwards done by him, or
by some others tipulation, which manifests the intention of the parties that it
shall not be assignable. But every one has a right to select and determine with
whom he will contract, and cannot have another person thrust upon him without
his consent. In the familiar phrase of Lord DENMAN, 'You have the right to
the benefit you anticipate from the character, credit, and substance of the party
with whom you contract.' Humble v. Hunter, 12 Q. B. 310, 317; Winchester v.
Howard, 97 Mass. 303, 305; Ice Co. v. Potter, 123 Mass. 28; King v. Batterson,
13 R. I. 117, 120; Lansden v. McCarthy, 45 Mo. 106. The rule upon this
subject, as applicable to the case at bar, is well expressed in a recent English
treatise: 'Rights arising out of contract cannot be transferred if they are coupled
with liabilities, or if they involve a relation of personal confidence such that the
party whose agreement conferred those rights must have intended them to be
exercised only by him in whom he actually confided.' Pol. Cont. (4th Ed.) 425.
The contract here sued on was one by which the defendant agreed to deliver
10,000 tons of lead ore from its mines to Billing & Eilers at their smelting
works. The ore was to be delivered at the rate of 50 tons a day, and it was
expressly agreed that it should become the property of Billing & Eilers as soon
as delivered. The price was not fixed by the contract, or payable upon the
delivery of the ore. But, as often as a hundred tons of ore had been delivered,
the ore was to be assayed by the parties or one of them, and, if they could not
agree, by an umpire; and it was only after all this had been done, and according
to the result of the assay, and the proportions of lead, silver, silica, and iron
thereby proved to be in the ore, that the price was to be ascertained and paid.
During the time that must elapse between the delivery of the ore and the
ascertainment and payment of the price the defendant had no security for its
payment, except in the character and solvency of Billing & Eilers. The
defendant, therefore, could not be compelled to accept the liability of any other
person or corporation as a substitute for the liability of those with whom it had
contracted. The fact that upon the dissolution of the firm of Billing & Eilers,
and the transfer by Eilers to Billing of this contract, together with the smelting
works and business of the partnership, the defendant continued to deliver ore to
Billing according to the contract, did not oblige the defendant to deliver ore to a
stranger, to whom Billing had undertaken, without the defendant's consent, to
assign the contract. The change in a partnership by the coming in or the
withdrawal of a partner might perhaps be held to be within the contemplation of
the parties originally contracting; but, however that may be, an assent to such a
change in the one party cannot estop the other to deny the validity of a
subsequent assignment of the whole contract to a stranger. The technical rule of
law, recognized in Murray v. Harway, 56 N. Y. 337, cited for the plaintiff, by
which a lessee's express covenant not to assign has been held to be wholly
determined by one assignment with the lessor's consent, has no application to
this case. The cause of action set forth in the complaint is not for any failure to
deliver ore to Billing before his assignment to the plaintiff, (which might
perhaps be an assignable chose in action,) but it is for a refusal to deliver ore to
the plaintiff since this assignment. Performance and readiness to perform by the
plaintiff and its assignors, during the periods for which they respectively held
the contract, is all that is alleged; there is no allegation that Billing is ready to
pay for any ore delivered to the plaintiff. In short, the plaintiff undertakes to
step into the shoes of Billing, and to substitute its liability for his. The
defendant had a perfect right to decline to assent to this, and to refuse to
recognize a party, with whom it had nevr contracted, as entitled to demand
further deliveries of ore. The cases cited in the careful brief of the plaintiff's
counsel, as tending to support this action, are distinguishable from the case at
bar, and the principal ones may be classified as follows: First. Cases of
agreements to sell and deliver goods for a fixed price, payable in cash on
delivery, in which the owner would receive the price at the time of parting with
his property, nothing further would remain to be done by the purchaser, and the
rights of the seller could not be affected by the question whether the price was
paid by the person with whom he originally contracted or by an assignee. Sears
v. Conover, *42 N. Y. 113, 4 Abb. Dec. 179; Tyler v. Barrows, 6 Rob. (N. Y.)
104. Second. Cases upon the question how far executors succeed to rights and
liabilities under a contract of their testator. Hambly v. Trott, Cowp. 371, 375;
Wentworth v. Cock, 10 Adol. & E. 42, 2 Perry & D. 251; 3 Williams, Ex'rs (7th
Ed.) 1723-1725. Assignment by operation of law, as in the case of an executor,
is quite different from assignment by act of the party; and the one might be held
to have been in the contemplation of the parties to this contract, although the
other was not. A lease, for instance, even if containing an express covenant
against assignment by the lessee, passes to his executor. And it is by no means
clear that an executor would be bound to perform, or would be entitled to the
benefit of, such a contract as that now in question. Dickinson v. Calahan, 19 Pa.
St. 227. Third. Cases of assignments by contractors for public works, in which
the contracts, and the statutes under which they were made, were held to permit
all persons to bid for the contracts, and to execute them through third persons.
Taylor v. Palmer, 31 Cal. 240, 247; St. Louis v. Clemens, 42 Mo. 69;
Philadelphia v. Lockhardt, 73 Pa. St. 211; Devlin v. New York, 63 N. Y. 8.
Fourth. Other cases of contracts assigned by the party who was to do certain
work, not by the party who was to pay for it, and in which the question was
whether the work was of such a nature that it was intended to be performed by
the original contractor only. Robson v. Drummond, 2 Barn. & Adol. 303;
Waggon Co. v. Lea, 5 Q. B. Div. 149; Parsons v. Woodward, 22 N. J. Law,
196. Without considering whether all the cases cited were well decided, it is
sufficient to say that none of them can control the decision of the present case.
Judgment affirmed.
