## Facts

- Four commonly owned pizza-restaurant corporations contracted with Virginia Coffee Service, Inc. to install, maintain, and service cold-drink vending machines.
- Each contract ran for one year and automatically renewed absent 30 days’ written notice.
- Virginia sold its assets to The Macke Company, which received an assignment of six vending-machine contracts.
- After the assignment, the pizza restaurants attempted to terminate, asserting a preference for Virginia’s service and disputing Macke’s right to perform under the contracts.
- Macke sued for breach of contract, seeking damages measured largely by lost profits.
- The trial court entered judgment for the restaurants, reasoning that (1) the contracts were non-assignable personal-service contracts and (2) Macke’s damages were too uncertain to prove.

## Issues

1. Whether the vending-machine installation and service contracts were non-assignable personal-service contracts or were assignable and delegable to Macke.
2. Whether the restaurants could rescind or terminate solely because performance would be rendered by Macke instead of Virginia.
3. Whether anticipated-profit damages for breach of the executory contracts were categorically too speculative or could be proven with reasonable certainty.
4. Whether Maryland U.C.C. bulk transfer provisions invalidated the contract assignments.

## Decision

- The court reversed the judgment for defendants on liability and remanded for a new trial limited to damages.
- The contracts were assignable and the associated duties delegable because they did not require unique personal services or involve *delectus personae*.
- The restaurants had no right to rescind merely due to the assignment where the expected quality of performance was not materially altered.
- Lost-profit damages were not barred as a matter of law; they may be recovered if proven with reasonable certainty, including by past-performance evidence where appropriate.
- The bulk transfer provisions did not invalidate the assignments, including because the restaurants were not “creditors” within the relevant statutory purpose.

## Legal Principles

- Absent a contractual prohibition, rights under an executory bilateral contract may be assigned and duties delegated, except where the contract is for personal services or the identity of the obligor is a material part of the bargain (*delectus personae*).
- A promisee cannot rescind solely because duties are delegated to a new performer if the quality of performance remains materially the same.
- Anticipated profits from breach of an executory contract are recoverable if proven with reasonable certainty; past performance over a sufficient period may support projections.
- U.C.C. bulk transfer rules do not void an assignment when the objecting party is not within the class the statute protects and the transaction is outside the statute’s principal target.

## Conclusion

The court held that routine vending-machine service agreements were not personal-service contracts and could be assigned and performed by the assignee without giving the restaurants a rescission right absent a material change in performance, and it ordered a new trial on damages because lost profits may be recoverable if established with reasonable certainty.


Macke Co. v. Pizza of Gaithersburg, Inc., 259 Md. 479, 270 A.2d 645 (Md. 1970)