I concur with Chief Judge CULLEN's opinion that the modification by the Appellate Division was, in effect, a reversal of the finding of fact by the trial court, that the Hamilton Company purchased the press of the Kidder Company without knowledge of the rights of the plaintiff's predecessor under its contract with the Kidder Company. That was a question of fact upon the evidence and if the Appellate Division deemed that the evidence was insufficient to sustain it, and that it warranted a contrary finding upon the subject, it might have directed a new trial of the issue. It could not, (as its opinion clearly shows that it has done), order a judgment for damages, which, necessarily, is based upon a different determination as to the issuable facts. I, also, concur with his opinion in the view that the contract was not unenforceable, as being in restraint of trade. It imposed no restraint upon the Kidder Company in the sale of presses. It created no monopoly. It operated, simply, to protect the plaintiff's predecessor in the enjoyment of its rights in a press, which, by the joint skill and industry of the parties, accomplished certain extraordinary results in the process of printing tickets. It prevented a dangerous competition, or rivalry, in the business of the plaintiff's predecessor and the loss of a benefit, to which it was entitled upon legitimate business principles. All competition was not excluded; but such competition, only, as would prevent that company from reaping the profits of the possession of a press, which, by the addition *Page 298 of the particular devices, made possible economies in the time and cost of printing strip tickets. The restraint was not upon the manufacture and sale by the Kidder Company of its presses; but, only, upon the use of a machine for the manufacture of strip tickets by the purchaser. I think it was quite lawful for the party, in contracting for the purchase of a press, to contract, further, for the protection of a business, which depended for its success upon the use of the press with peculiar attachments, or devices.
I, also, concur with the opinion, in what is said upon the error in the adoption of a rule of damages, which gave to the plaintiff all of the profits accruing to the Hamilton Company under its contract for the printing of tickets upon the Kidder presses. I think the burden of proof rested upon the plaintiff to establish what saving, if any, resulted to the Hamilton Company and, hence, what profits, from the use of the Kidder presses, and the terms of the order of the Appellate Division, with respect to the interlocutory judgment referring for proof of damages, appear to have so placed it.
But I am compelled to differ in opinion with respect to the question of the assignability of this contract. In my opinion, it was assignable and passed to the present plaintiff upon the transfer to it by its predecessor, the New Jersey corporation. The plaintiff, as it was found by the trial court, succeeded to the business of the New Jersey company and became possessed of all its assets and property. It was, in fact, but a reorganization of the old New York Bank Note Company, under the laws of another state, to take over the business and effects of that company. How the element of personal trust, or confidence, which may confer upon the agreements of parties the character of non-assignability, could be found in this contract I am unable to understand. It did not prevent an assignment by its language and what are the features, which make it a non-assignable instrument? They are said to be in those provisions, which prescribe that the title to presses manufactured by the Kidder Company for others should be vested in the New York Bank Note Company, which should transfer them *Page 299 by form of leases; accounting to their manufacturer for the price received. But, while that may be regarded as creating an agency, it was not one as ordinarily constituted; for the bank note company did not procure the purchasers. The arrangement was one made, altogether, for the benefit of that company and was intended as its protection against an unfair business rivalry. It was the "most feasible and proper way to protect its interests," as the contract terms it. The moneys proceeding from the sale of presses did not belong to the bank note company; but were to be handed over to the Kidder Company. The plaintiff was, of course, a different corporate entity from its New Jersey predecessor; but it possessed the same business interests; had the same corporate purpose and was as capable of performing the duties imposed upon it by the contract, as was its assignor; for the main obligation was to pay over moneys received from purchasers of presses. The work of a corporation is done through its servants, or agents, and, therefore, the contract could not involve the personal relation, or confidence, which might be predicated of it, where it was to be performed by a natural person. (New England IronCo. v. Gilbert Elev. R.R. Co., 91 N.Y. 153, 167; RochesterLantern Co. v. Stiles Parker Press Co., 135 ib. 209.) While the liability of the bank note company to account for the moneys received as the price of presses manufactured by the Kidder Company might appear, at first, to bring the case within the operation of the accepted rule, that rights arising out of contract cannot be transferred, if they are coupled with liabilities, (Pollock on Contracts, [4th ed.], p. 425), it seems clear to me that the rule is not applicable to such a case as this. The assignee here is a corporation, organized to take over the properties of the assignor, with like corporate purposes and powers. Its interests and its concerns are the same as the corporation, for which it was substituted, and I cannot think that it is for the Kidder Company to say that a provision of the contract, plainly intended only for the protection of the interests of the other contracting party, involved a relation of personal confidence and gave to the former a particular interest in a performance *Page 300 only by the latter. I am in accord with the views expressed by Mr. Justice O'BRIEN, at the Appellate Division, when discussing this question.
I vote, therefore, for the reversal of the judgment upon the other grounds discussed in the chief judge's opinion.
O'BRIEN, BARTLETT, HAIGHT and VANN, JJ., concur with CULLEN, Ch. J.; GRAY, J., reads for reversal; WERNER, J., absent.
Judgments reversed.