As one court succinctly put it, "parties may agree to make an otherwise unassignable contract assignable by insertion of a `successors and assigns' provision." KN GasSupply Servs., Inc. v. Am. Prod. P'ship, 994 F. Supp. 1283, 1286 (D. Colo. 1998) (citing Baum v. Rock, 108 P.2d 230, 234 (Colo. 1940)). See, e.g., Katahdin Ins. Group v. Elwell, No. CV-00-198, 2001 WL 1736572, at *4 (Me. Super. Ct. July 9, 2001); Saliterman v. Finney, 361 N.W.2d 175, 178 (Minn.
Likewise, paragraph 21 of both contracts specifying that each agreement is binding on the principals and "each of their respective . . . assigns" is evidence of consent to the delegation of an otherwise nondelegable duty. 4 A. Corbin, supra, § 871, at 481; cf. Little Rock Surgical Co. v. Bowers, 227 Mo.App. 744, 747, 42 S.W.2d 367, 369 (1931); In re Frayser's Estate, 401 Ill. 364, 372, 82 N.E.2d 633, 638 (1948); Baum v. Rock, 106 Colo. 567, 574, 108 P.2d 230, 234 (1940) (conclusive evidence of intent). Additionally, the evidence presented during trial indisputably showed that during negotiation of the contracts, both parties anticipated that limited partnerships to be formed by Nicholson and Ariko would take over the contracts.
Stafford argues that because of the changes made by Cargill there was no mutuality of assent as required by Colorado for there to be an enforceable contract. See e. g. McCoy v. Pastorius, 125 Colo. 574, 246 P.2d 611, 615, and Baum v. Rock, 106 Colo. 567, 108 P.2d 230, 233. None of the Colorado decisions cited by Stafford involve the version of the Uniform Commercial Code adopted by Colorado in 1965. The Code rejects the subjective test of intent and replaces it with mutuality of assent as manifested by the conduct of the parties.
Under Colorado law, which the parties agree applies, parties may agree to make an otherwise unassignable contract assignable by insertion of a "successors and assigns" provision. Baum v. Rock, 106 Colo. 567, 575, 108 P.2d 230, 234 (1940). American cites Temple Hoyne Buell Foundation v. Holland Hart, 851 P.2d 192 (Colo.App. 1992) for the proposition that assignments are valid only if such assignment would not impair the rights of the parties to the contract.
See; Credit Investment and Loan Co., Inc., v. Guaranty Bank and Trust Company, et al., 143 Colo. 393, 396, 353 P.2d 1098 (1960), and Sweeney v. Stenjem, 271 Wis. 497, 74 N.W.2d 174, 176, 177 (1956). Also see the following cases for the discussions of law relative to breaches of contracts of agency by a principal: Baum v. Rock, 106 Colo. 567, 574, 108 P.2d 230 (1940); Falstaff Brewing Corporation v. Iowa Fruit Produce Co., 112 F.2d 101, 106, 107 (1940); Walter Brewing Co., v. Hoder, 123 Colo. 421, 230 P.2d 170 (1951); Navy Gas Supply Co. v. Schoech, 105 Colo. 374, 98 P.2d 860 (1940); Uinta Oil Refining Co. v. Ledford, 125 Colo. 429, 244 P.2d 881 (1952). We hold that independent contractors or agents like Settlemeyer have the right to earn a livelihood to continue their business unmolested by unwarranted activities of third persons and are entitled to protection in equity just like the employees of any business.