Lucas v. Gross Motor Car Co.

OPINION OF COURT. The following is taken, verbatim, from the opinion. CUSHING, J. The Motor Car Company contends that the King System, by filing a voluntary petition in bankruptcy, disabled itself from performing the contract and breached it. The King System agreed to keep the bulletins in repair and to repaint them every six months. It is not claimed that any bulletin boards were destroyed or out of repair, or that the bulletin boards were not painted as per contract. In argument, counsel failed to state that the Gross Motor Car Co. was using property (bulletin boards) of the King System, and that it received what it agreed to pay for, to-wit: advertising. It is contended that the contract “was for personal service and not assignable”. The rule by which it is determined whether or not a contract is for personal service is stated in Starchroom Pub. Co. v. Threlkeld Engr. Co., 13 Oh. App. 281, 283: “So-called personal contracts, or contracts in which the personality of the parties is material, are not assignable. -Whether the personality of one or both parties is material depends upon the intention of the parties, as shown by the language which they have used, and upon the nature of the contract. 4 Page on Contracts (2 ed.) Sections 2248-2251. See also' Williston on Contracts Section 413; American Smelting & Refining Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 248 Fed. Rep. 172, 184, 185; and Wooster v. Crane & Co., 73 N. J. Eq., 32.” The contract under consideration provided: “We agree to pay you, or your successors or assigns, each month, the amount above set opposite each bulletin, for a period of 24 months from the average date of the completion of them all”. The clause in the contract providing for payment “to your successors or assigns” divested the contract of the element of personal service, under the rule above stated. The judgment of the Court of Common Pleas will be reversed, and the cause will be remanded to that court with instructions to affirm the judgment of the Municipal Court. (Hamilton, PJ. and Mills, J. concur.)