## Facts

- Philip and Louise Seale prepaid substantial fees to Bates Dance Studio for 600 half-hour dance lessons and later sought a refund of $2,040 for unused lessons.
- Martin R. Hanscome prepaid $4,131.34 for 612 hours of instruction and sought return of the unearned portion.
- The lesson contracts were noncancellable and did not specify instructor identity, class size, or studio conditions.
- Bates transferred the contracts to Dance Studio of Denver, Inc., doing business as Dale Dance Studio, and plaintiffs were told Dale had assumed the obligations and would provide continuation with the same instructors and instruction.
- Plaintiffs took lessons at Dale but complained about inferior conditions (smaller, more crowded space and interfering music).
- The Seales continued for about 30 half-hour lessons, stopped in May 1957, and demanded a refund or alternative arrangement in August 1957; Hanscome’s experience was similar.

## Issues

1. Whether a personal-service contract for dance instruction could be assigned from Bates to Dale without the students’ consent.
2. Whether plaintiffs assented to the assignment and assumption by continuing lessons and not timely repudiating or rescinding.
3. Whether the complained-of changes in studio conditions constituted a material breach justifying rescission and restitution of prepaid fees.

## Decision

- The Colorado Supreme Court affirmed dismissal of plaintiffs’ claims after plaintiffs’ evidence in a bench trial.
- The court treated the contracts as personal-service in character and ordinarily nonassignable without consent.
- The court held plaintiffs’ conduct showed assent to the transfer and Dale’s assumption of the contractual duties.
- The court held the asserted deficiencies in room size, crowding, and noise did not establish breach of any express or implied contractual term sufficient to support rescission.

## Legal Principles

- Personal-service contracts are generally not assignable without the promisee’s consent.
- A promisee’s acceptance of an assignee’s performance, coupled with continued performance and failure to timely rescind after learning of the transfer, can constitute assent that makes the assignment effective.
- Rescission and restitution require a material failure of performance; dissatisfaction about conditions not promised in the contract is insufficient when the essential performance is still provided.

## Conclusion

Because plaintiffs accepted Dale’s performance after learning of the transfer and did not promptly repudiate it, they could not avoid the contracts on nonassignability grounds, and their complaints about inferior studio conditions did not show a material breach warranting rescission or return of prepaid fees.


Seale v. Bates, 359 P.2d 356 (Colo. 1961)