
    John D. Walton et al., Resp’ts, v. Will Rafel, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed March, 1894. )
    
    Assignment—Assignability.
    A contract which, by its express terms, is binding upon the legal representatives of the parties, ig assignable.
    Appeal from judgment of the district court awarding possession of property to plaintiff.
    The form of the action was, by stipulation, that of “ wrongful •detainer," the sole issue in the case being the assignability or nonassignability of a written instrument. The agreement was one made between J. D. Walton & Co., as parties of the first part, and T. & A. S. Kaliske, as parties of the second part, by which it was, among other things, provided:
    “ The parties of the first part permit the parties of the second part to establish, conduct and carry on in their present place of business what is known as a shoe department, and for such shoe department they are to have and occupy certain designated space.
    The goods sold in the so called shoe department are to be sold in the name of the parties of the first part, who are furthermore to supply without charge all wrapping material and deliver all merchandise sold in said department. They are furthermore to furnish necessary gas and heat and keep the premises in clean condition; also stationary fixtures, such as counters, shelves, drawers and the cash system at their own cost and expense. The expense in advertising the shoe department shall be equally divided between the parties. T. & A. S. Kaliske agree to carry a full assortment of goods necessary for said shoe department, to make sales thereof at reasonable prices, and to meet all reasonable competition. They are to employ the necessary help for the proper conducting of said department, but each employee is subject to the approval of the parties of the first part. The parties of the first part are to make weekly payments in current funds of the United States of the sum or amount of receipts of said department, less certain percentage herein fixed. Accounts of all sales and receipts in the shoe department are to be kept by parties of the first part, which the parties of the second part shall have the right to examine. In lieu of all charges for rent, gas and heat, and the other matters and incidentals herein mentioned, the parties of the first part are to receive the sum of ten per cent on the gross amount of all sales actually made in said shoe department The agreement is to continue for a period of five years from May 1, 1891. In case said parties of the first part should sell or otherwise dispose of their said business, or materially change the same, then the parties of _ the second part, at their election, may terminate and cancel this agreement. This agreement is to bind the parties hereto and their legal representatives.”
    The agreement further contains a covenant for quiet enjoyment, and also a provision that a breach of the terms of this agreement, or of either thereof, shall operate, at the election of the party aggrieved, as a forfeiture or termination and cancelation of this agreement.
    T. & A. S. Kaliske assigned all their rights under the contract to the defendant some time before suit brought.
    
      B. Lewison (K. T. Taliaferro and Max J. Kohler, of counsel), for app’lt; Ormiston & Dorsett, for resp’ts.
   Pryor, J.

The prompt disposition of the appeal entreated by counsel on the argument precludes the possibility of an opinion at all commensurate with the thoroughness of the able and exhaustive briefs with which we are favored. We must be content barely to state the grounds of our decision.

Conceding, for argument, the position of the -respondents, that the instrument under examination is not a lease, still we are unable to detect in its terms any indication of such personal trust and confidence reposed in the Kaliskes as Would- render the contract unassailable by them. Every party to an agreement confides that the other would perform it; else, surely, he would not accept the other’s engagement. Beyond this, what is there on the face the instrument to reveal a reliance on the peculiar character of theKaliskes ? Nothing is said of their peculiar qualifications, nor of their repute in the community, nor of any circumstance that would distinctively commend them to the confidence of the respondents. Neither is it apparent that what the Kaliskes undertake may not be as well performed by another as by themselves.

It may be urged that one succeeding the Kaliskes by assignment, or otherwise, might, because of the intimate relations with the respondents, afflict them with immeasurable embarrassment and injury ; since against such a contingency they have provided abundant precaution in the instrument—a security as available and effectual against an assignee as between the parties themselves. The assignee of the contract must take it as well with its burdens as its benefits. But two provisions in the instrument seem to us conclusive against the construction that the relation it creates is to subsist only between the Kaliskes and respondents. The ninth article stipulates that should the respondents sell or otherwise dispose of their business, the Kaliskes may cancel the agreement. Now, if the agreement be one of personal trust and confidence, of such sort that its obligations are reciprocally due between the parties, and to no one else, then, manifestly, whenever the respondents should retire from business, during the stipulated term, the contract would be broken, and the right of the Kaliskes to concel it would be clear and indisputable. Why, then, an express provision for such right unless upon the hypothesis that the right would not otherwise exist, i. e., except upon the hypothesis that the contract and its obligation on the Kaliskes would survive in favor of the successors and assigns of the respondents.

The twelfth article is still more explicit, to the effect that the relations and obligations it creates may subsist between the respondents and the assignee of the Kaliskes. It stipulates that “ this agreement is to bind the parties hereto and their legal representatives." If, as respondents contend, the contract was one of personal trust and confidence, then would it be terminated upon the death of either party, and would not continue to bind his legal representatives, Lacy v. Getman, 119 N. Y., 109, 115, 116; 28 St. Rep. 546 ; Greenberg v. Early, 30 Abb. N. C., 300. On the other hand it is only a contract which does not involve personal confidence, that might be enforced against the estate of the deceased party, Bish. on Cont., sec. 86. By this provision the benefits and burdens of the contract devolve upon the representatives of the parties, and “ in all cases where the executor or administrator would succeed to the rights and liabilities of a deceased party to a contract, the contract is assignable by the act of the parties.” Devlin v. Mayor, etc., 63 N. Y., 8, 16. Descendibility and assignability are convertible terms. Zabriskie v. Smith, 13 N. Y. 322.

We see no escape from the conclusion that the Kaliskes’ interest in the contract is transferable.

We perceive in the agreement no element of a partnership inter sese, nor as to third persons.

Here is no common business or common stock, but each party retains his own stock and his own business. Whatever sales are made by the respondents are made expressly “ as agents of the parties of the second part,” that is the Kaliskes; and whatever money is received by the respondents is to be paid over to the Kaliskes—less the percentage on sales, which, retained “ in lieu of rent,” is ineffectual to constitute a partnership. Richardson v. Hughitt, 76 N. Y. 55; Cassidy v. Hall, 97 N. Y., 159 ; First Nat Bank v. Gallaudet, 122 N. Y., 655, 657; 34 St Rep. 228.

From the conclusion that the interest of the Kaliskes under the agreement was assignable it results that the judgment is erroneous.

Judgment reversed and cause remanded to the court below for entry of final order in favor of appellant, pursuant to the stipulation between the parties.

Bischoef, P. J., concurs.  