Macke Co. v. Pizza of Gaithersburg Case Brief

Summary of Macke Co. v. Pizza of Gaithersburg
Ct of App Maryland [1970]

Validity of Assignment/Delegation-Performance Obligations

Relevant Facts: Df/ees, Pizza 4 corporations under common ownership, operated at 6 locations. They arranged to have installed at each location cold drink vending machines owned by Virginia. This arrangement was formalized at 5 by K for 1yr terms, renewable absent 30 written notice. Later a similar K was entered into for the 6th location. Virginia’s assets were purchased by Macke and the 6 Ks were assigned to Macke. Pizza attempted to terminate the Ks. Macke brought suit for damages on breach of K.

Legal Issue(s): Whether the rights and duties under a service contract may be assigned and delegated was permissible under the terms of the agreement between Pizza and Virginia?

Court’s Holding: Yes

Procedure: Tr ct ruled judgment favor of Df; Pl appealed; Ct App reversed and remanded for a new trial on damages.

Law or Rule(s): In the absence of contrary provision, rights and duties under an executory bilateral K may be assigned and delegated, subject to the exception that duties under a K to provide personal services may never be delegated, nor rights be assigned under a K where the choice of the person was an ingredient of the bargain.

Court Rationale: The six machines were placed on the appellee’s premises under K which identified the customer; gave its place of business, described the vending machines, and provided that the Co will install and maintain the equipment on the customer’s premises. We cannot regard the agreements as Ks for personal services. They were either a license or concession or a lease of a portion of the premises, and assignable by Virginia UNLESS they imposed on VA duties of a personal or unique character which could not be delegated. The difference btwn VA’s service and Pl’s service did not mount up to such a material change in the performance of obligations under the agreements as would justify the appellee’s refusal to recognize the assignment. The delegation of duty by VA to Macke was entirely permissible under the terms of the agreements.

Plaintiff’s Argument: Installation and maintenance of machines do not require extraordinary skill or knowledge and is not personal.

Defendant’s Argument: Pizza had dealt w/ Macke previously and had chosen VA b/c the service provided was personal.

Restatement: Performance or offer of performance by a person delegated has the same effect as performance or offer of by the person named in the K, UNLESS; the performance delegated varies or would vary materially from performance by person named AND there has been no assent to the delegation.


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