Pike v. City of Waltham

47 N.E. 437, 168 Mass. 581, 1897 Mass. LEXIS 302

• Court: Massachusetts Supreme Judicial Court
• Decided: June 15, 1897
• Status: Published

Opinion

Field, C. J.

The contract could not be assigned without the consent of the city, so as to substitute the assignee as a party to the contract in place of the Pikes. The city had a bond given by the Pikes, with sureties, and had a right to hold the Pikes and their sureties on the bond responsible for the due performance of the work by the Pikes. The Pikes could have performed the contract by means of agents, and, if Benshimol had continued to act as agent for the Pikes and had completed the contract as such agent, the contract would have been properly performed. But when Pike, the survivor of the two partners, assigned the contract to Benshimol, and renounced all interest in it, and when Benshimol offered to complete the contract, not as agent for the Pikes, but in his own behalf as assignee, the city had the right to refuse to permit Benshimol to go on with the work. If the city had assented to this, it would have released the Pikes from responsibility for any failure to complete the contract, would have lost the benefit of the bond, and would have relied wholly upon the responsibility of Benshimol for any subsequent breach of the contract. When Pike, the survivor, renounced all interest in the contract, and refused to go on with the work, he broke the contract, and the fact that Benshimol, on his own account as assignee, offered to complete the contract, is not equivalent to an offer to perform it by Pike. In the opinion of the majority of the court, the exceptions must be sustained.

¡So ordered.