Sherberne & Associates v. Vector Manufacturing Co.

This is an appeal by plaintiff from the order dismissing its action, because of the lapse of five years without a trial. We are affirming the order.

The action was commenced July 12, 1961. Defendants’ notice of motion to dismiss was filed just five years later, on July 12, 1966. A demurrer had been interposed by the defendants on September 5, 1961. It was sustained, with leave to amend, as to two of the four causes of action of the complaint, and a first amended complaint was filed October 25, 1961. To this, defendants Vector (as we shall refer to defendant Vector Manufacturing Company, Inc.) and Piske filed an answer, containing, as a second affirmative defense, a statement that the written agreement of September 15, 1957, upon which plaintiff relied in each of its four causes of action, contained a provision that 1 ‘ the obligations of the agent hereunder are not subject to assignment or delegation, except with the prior consent and agreement of the principal. ’ ’ Defendants added: *70 “The purported assignment to plaintiff of said agreement dated September 15, 1957, was without the prior consent and agreement of defendant Vector. ...”

On July 19, 1963, defendants gave notice…