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KEHOE v. KEHOE-BERGE COAL COMPANY. (03/18/57)

March 18, 1957

KEHOE, APPELLANT,
v.
KEHOE-BERGE COAL COMPANY.



Appeal, No. 246, Jan. T., 1956, from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1955, No. 2388, in case of Thomas J. Kehoe v. Kehoe-Berge Coal Company. Judgment affirmed.

COUNSEL

Joseph E. Gallagher, with him William P. Farrell, and O'Malley, Morgan, Bour & Gallagher, for appellant.

James T. Shea, with him Shea & Shea, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Musmanno

[ 388 Pa. Page 80]

OPINION BY MR. JUSTICE MUSMANNO

The plaintiff seeks to have the Court extricate him from a situation and status which he accepted voluntarily and for a consideration. Under the circumstances of the case, he has assigned himself an impossible task. On October 15, 1944, he entered into a contract with the Kehoe-Berge Coal Company and Pittston-Duryea Coal Company, whereby a previous contract dated April 17, 1943 was to be cancelled and he was to receive $500 per month so long as the companies produced coal from certain specified lands.

The agreement carried the provision that: "It is agreed by and between the parties that this agreement is personal to Kehoe and may not, in whole or part, be assigned, transferred, or sublet, by act of Kehoe or by operation of law, without the Companies consent in writing first being obtained."

On January 23, 1948, the plaintiff assigned his rights under the contract to his wife, Grace Houser Kehoe, the assignment being witnessed by John C. Kehoe, Jr., and John C. McNamara, president and secretary-treasurer of the defendant company. On the same day John C. Kehoe, president of the company, on defendant company's stationery, wrote Mrs. Kehoe confirming the assignment. From January, 1948 to April, 1952, the defendant company made payments to Mrs. Kehoe in accordance with the terms of the contract. On July 26, 1953, Mrs. Kehoe, for a consideration of $15,000, assigned the contract to certain trustees who, in turn, assigned the contract to the defendant.

[ 388 Pa. Page 81]

Two years after this last transaction, and five years after he had assigned to his wife the benefits of the contract of October 16, 1944, the plaintiff decided to turn back the clock, so that he could be where he was before he, of his own initiative and volition, divested himself of his rights. He filed a suit in assumpsit against the defendant company claiming $24,000 on the basis that he had made the assignment to his wife "without the companies' consent in writing having first been obtained."

"First" does not necessarily mean the initial pen stroke in an agreement. The obvious intent of the paragraph under consideration was to prevent an assignment without the consent of the company involved. If that consent was not given in a preceding heartbeat, it at least accompanied simultaneously the transfer of the plaintiff's rights and, as has been noted, the company ratified the assignment on the same day that it approved of the transfer.

However, apart from all this, the prohibition against assignment in the contract falls under Section 176 of the Restatement, Contracts: "A prohibition in a contract of the assignment of rights thereunder is for the benefit of the obligor, and does not prevent the assignee from acquiring rights against the assignor by the assignment or the obligor from ...


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