Defendant assignee appealed from a judgment of the Superior Court of the City and County of San Francisco (California) that rendered a judgment in favor of plaintiff assignor in an action for damages for breach of contract.
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The assignor and the seller entered into a contract for the sale and purchase of apricots. The assignor assigned its interest in the contract to the assignee, but the seller refused to accept him in place of the assignor. The seller delivered the apricots to the assignor, which the assignor, from time to time as they were delivered to it, tendered to the assignee, who refused to accept or pay for it. The assignor placed the crop for sale in open market and realized less than the amount it was compelled to pay the seller. The supreme court ruled that the contract between the seller and the assignor was non-negotiable, but under Cal. Civ. Code § 1459, it could have been transferred by indorsement. The burden of the obligation rested on the assignor and could not be transferred without the consent of the seller. While the assignor was not released from the burden of the contract by the assignment of it, yet when the assignee took the right to purchase the fruit, for the benefit of the contract, it assumed the burden of paying, in accordance with the principle of Cal. Civ. Code § 1589. There was a breach of an implied contract when the assignee refused to accept and pay for the crop.
The judgment in favor of the assignor was affirmed.