The record-union., 1895-12-28

with him or not The voters gave their
consent, and the contract in question
was drawn and signed by the respective
parties.
Counsel for plaintiff contends that the
contract itself provides that plaintiff
| may assign his contract. We must
turn to the contract and see if its pro-
visions sustain this contention. At the
outset of the contract we find the con-
tracing parties to be the City of Sac
| ramento, first party, and A. L. Fish,
! second party Then after setting out
Ordinance 31S as the basis of the con-
tract, use this language: Now in con-
sideration of the premises the said
party of the first part, through the
Board of Trustees, pursuant to the au-
thority in them vested, and the said
| party of the second part do covenant
| and agree with each other and their
successors and assigns as follows" 4"
Then follows the conditions and specifi-
! cations of the contract, what is re-
quired to be done by the respective par
ties.
In these specifications there are a
large number of weighty and valuable
conditions imposed upon the second
party, which he undertakes to perform,
but in not one of them is found any ref
erence made that he or his assigns shall
perform them, showing that at all
times the first party were trusting
Fish's character and credit for a faith
ful performance of the contract. The
<A
this: ''The said party of the first part
does hereby agree to the party of the
second part or his assigns the sums
herein before stated for such water,
etc" Upon these two paragraphs of the
contract plaintiff pins his hopes.
l fail to see anything tenable in his
position. The last clause certainly no
more than declares the equitable rule
that when the second party performs
his part of the covenant that his due
will be paid either to him or his as
signs; in other words, the work being
performed by the contractor the con-
tract price becomes q chose in action,
and therefore assignable. The first para
graph cited is to the same effect; it is
no more than an agreement on the
part of the city for certain cQnsidera-
tions to pay the second or his assigns
the money that should be due for the
work that was expected to be done by
the second party.
The absurdity of the position con-
tended for by plaintiff presents itself to
my mind if we should reverse the con-
ditions in this case. Suppose on the 18th
of September, 1898, the defendant had
have assigned its contract to some ir-
responsible person without the consent
of Fish, do you think he would have
submitted for moment? Certainly not
He would have looked to the city for
his pay, and not to the impecunious in
dividual substituted. He was dealing
with the city upon the strength of its
credit. The city was so dealing with
him. Neither had the right to Shift
his responsibility without the consent
of the other.
There is another matter to be con-
sidered. The proposition submitted to
the voters of the city was: Should the
city enter into a contract with A. L.
Fish, not with Fish and his assigns 4?
If the Trustees in their contract had
have given Fish by unmistakable terms
the privilege to assign his contract I
am inclined to think that the Board of
Trustees would have exceeded their au-
thority, because as have just said they
were empowered to make a contract
with Fish only.
But there is still another view to be
taken of this matter; if the contract did
as claimed give Fish the right to assign
it did not give the power to continue
such authority ad libitum. The plaint-
if is the assignee of Fish's assignees.
1t is a well settled rule that a power
of attorney does not give the power to
appoint another attorney unless ex-
pressly stated in the power itself. Why
should not the same rule work here? If
there must be an express stipulation
that the parties to contract may sub
stitute assigns, then how much more
necessary must it appear by express
stipulation that the assignees may sub
stitute other assignees as was done in
this case.
1t then follows that plaintiff has not
established a cause of action against
the defendant herein, and that the de-
murrer to plaintiffs complaint must be
sustained. l do not deem it necessary
to consider the remaining question
raised by defendants demurrer
Let the demurrer be sustained.