Lucas v. Gross Motor Car Co. , 32 Ohio App. 183 ( 1927 )

On and after March 14, 1925, the King System, incorporated, owned bulletin boards in Hamilton county, Ohio, and Campbell and Kenton counties, Kentucky. On March 14 it entered into a contract with the J.H. Gross Motor Car Company to paint a number of its bulletin boards with the advertisement of the motor company. The King System agreed to keep the boards in repair and to repaint them every six months. The motor car company was to pay a rental of $125 per month for twenty-four months.

Subsequently it was agreed that a bulletin board on the Dixie Highway was to be illuminated, and that three additional bulletin boards in Newport, Kentucky, were to be painted and used for advertising at an agreed rental.

In April, 1926, the King System was adjudged a bankrupt in the District Court of the United States for the Eastern District of Kentucky.

On May 19, 1926, the trustee in bankruptcy was ordered to sell the property of the bankrupt, including the bulletin boards, leases, wall leases, wall boards, contracts, accounts receivable, etc. The trustee sold the property to Leo Lucas, Lewis Carroll, and George H. Lackner, partners doing business as the King System, for $10,500.

The purchasers sued the motor car company for $480, for unpaid instalments of rent. The municipal court rendered judgment for plaintiffs. Error was prosecuted to the court of common pleas, which court reversed the judgment of the municipal court. This action is prosecuted to reverse the judgment of the court of common pleas.

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 Company 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 Starch-room Publishing Co. v.Threlkeld Engraving Co., 13 Ohio App. 281, 283:

"So-called personal contracts, or contracts in which the personality of one 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 (2d Ed.), Sections 2248-2251. See also 1 Williston on Contracts, Section 413; American Smelting Refining Co. v. Bunker Hill Sullivan Mining ConcentratingCo., 248 Fed. Rep., 172, 184, 185, and Wooster v. Crane Co.,73 N.J. Eq. 22 [66 A. 1093]."

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.

Judgment reversed.

HAMILTON, P.J., and MILLS, J., concur.