The opinion of the court was delivered by: FORMAN
This matter was tried without jury. The defendant rested without offering any testimony, after which both plaintiff and defendant moved for judgment. The defendant's motion was grounded upon the contention that the plaintiff failed to state a cause of action.
The operative facts are based upon a contract entered into between Dean Anderson, Incorporated (Anderson) a promoter of financial campaigns and Admiral Farragut Academy (Academy), a boys' preparatory school, on December 5, 1946. By the terms of this contract, Anderson was to conduct a financial campaign for the Academy. The contract provided:
'12. As compensation for its services as hereinbefore set forth, in addition to expenses, salaries, etc., as hereinbefore set forth, Anderson shall be paid by Client (Academy) a fixed fee of Eleven Thousand seven hundred fifty Dollars ($ 11,750), which shall be paid in fifty-one (51) weekly installments of $ 225.00, and one (1) weekly installment of $ 275.00. This sum is included in the weekly payments of $ 689.50 mentioned in Paragraph 7.'
'18. It is mutually agreed by both Client and Anderson that, ninety (90) days after the starting date named in paragraph 1 of this agreement, either party may cancel this agreement upon Thirty (30) days written notice. In the event of such written notice upon the part of Client, Client agrees to pay the balance due of the fixed fee of Eleven Thousand and Seven Hundred Fifty Dollars ($ 11,750.) such balance to be paid in one inclusive payment on or before the date of cancellation; and campaign expenses incurred prior to effective date of termination will be paid by Client.'
The termination date was established by paragraph 1 of the agreement as 52 weeks after December 5, 1946 'unless extended by mutual consent in writing and signed by the parties hereto or unless terminated by either party as provided in paragraph 18.' No proof has been offered of termination as provided by paragraph 18 of this agreement.
By written contract dated April 30, 1947 Anderson assigned a balance due of $ 7,250 on the fixed fee portion of the contract to the Newton Title and Trust Company (Bank), which Academy consented to on April 30, 1947, in the following terms:
'Know All Men, that Admiral Farragut Academy, of Toms River, State of New Jersey, for the consideration of $ 1.00, receipt whereof is hereby acknowledged, and other good and valuable consideration, hereby consents to the foregoing assignment to The Newtown Title and Trust Company of the balance of the fee of $ 11,750.00, which is due, or may become due to Dean Anderson, Incorporated, under the terms of the contract entered into between Dean Anderson, Incorporated, and Admiral Farragut Academy, on December 5th, 1946, as more particularly set forth under Paragraph 12 and 18 thereof.
'And the Admiral Farragut Academy further agrees as follows:
'1. That it has had no notice of any prior assignment by Dean Anderson, Incorporated, of amounts due the latter under the aforementioned contract.
'2. That at the present time, the unpaid balance of the fixed fee provided by Paragraph 12 of said contract is $ 7,250.00.
'3. That it will pay the weekly installments of the fixed fee due under Paragraph 12 of said contract directly to The Newtown Title and Trust Company, Newtown, Bucks County, Pennsylvania, and deduct said payments from those due Dean Anderson, Incorporated under Paragraph 7 of said contract.
'4. That at the time of executing this consent, Dean Anderson, Incorporated has not defaulted or failed to perform any of its obligations under said contract.'
Thereupon a promissory note payable on demand for the sum of $ 5,000 was executed by Anderson to the order of the Bank of May 1, 1947 with the assignment of the 'fixed fee' due from Academy to Anderson as collateral. The proceeds of the note were placed to the credit of Anderson by the Bank.
Two payments were made by the Academy to the Bank; $ 225 on May 12, 1947 and $ 450 on May 26, 1947. No further ...