JACKSON vs BEERS

JACKSON vs. BEERS. Twelfth Judicial District Court, June, 1857. Assiqnmeht OF a ComBACT. Am assignee of a contract requiring the continued performance thereof, cannot maintain am action epos the breach of the other party, alleging in his complaint the performaftca of the conditions by the assignee or agent. . TMs is an action brought by the plaintiff as assignee of a contract between Gilbert & Stringer and Beers & Davies. The complaint shows that Beers & Davies entered into a contract with Gilbert & Stringer, whereby Beers & Davies agreed to furnish Gilbert & Stringer 25,000 gallons of turpentine to be distilled into camphene. Gilbert k Stringer agreed to distil the same at the rate of fifteen cents per gallon; and then it was agreed that the nett proceeds, after deducting the market value of the turpentine and the fifteen cents per gallon for distilling, and other expenses of selling the camphene, should be equally divided between G. & S. and B. & D. And it was agreed that for failure to perform on the part of G. & S., &©y should forfeit their distillery and $1,000 ; and for a failure on the part of B. & D., they should forfeit $3750, or fifteen cents per gallon for the amount agreed to he distilled—and that there should be liquidated damages. The complaint' also averred that the contract was to terminate on ¿he first day of April. The complaint also avers that during the continuance of the contract, before the 1st of April, Gilbert k Stringer assigned all their right, title and interest in said contract to the plaintiff, and that G. & S. and the plaintiff, acting as their assignee and agent, fully performed the contract on their part, and then avers a breach on the part of Beers & Davies, and this action is to recover damages for the breach. The defendants demurred to the complaint, on the ground that the averment of performance of the contract was by the agent or assignee. Reynolds, for plaintiff. Molladay Cary, for defendant. [MAJORITY — Norton, J.] Norton, J. This contract is not assignable during the continuance thereof, but must be performed by Gilbert & Stringer. The averment in the complaint of the performance by an agent or assignee is insufficient. Demurrer sustained with leave to amend.