Aigeltinger Co. v. Healy-Tibbitts Construction Co.

KERRIGAN, J.

Plaintiff recovered judgment for $936.25, interest and costs. Defendant appeals.

The facts in this case are as follows: The defendant, Healy-Tibbitts Construction Company, a. corporation, entered into a contract with the board of public works of the city and county of San Francisco, whereby it agreed to construct the Twin Peaks reservoir. Thereafter the defendant entered into a written contract with the Atlas Construction Company for the performance of the excavation work upon said Twin Peaks reservoir. In said contract it was provided that payments should be made upon the fifteenth day of each month, covering the value of seventy-five per cent of work performed during the preceding month; the remaining twenty-five per cent to he paid thirty-five days after the final completion

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and acceptance of all. work included in said contract. Said contract was assigned to Atlas Building and Construction Company, and it commenced the work of excavation some time in March, 1910, and in June following it ceased to do any further work and abandoned said contract. During the months of March, April, and May, 1910, the Atlas Building and Construction Company performed work under the contract. It reported each month to the defendant the amount of work performed, and it was paid seventy-five per cent thereof on the fifteenth day of the succeeding month. In other words, it was paid everything due it according to contract for all work performed prior to June 1, 1910.

On the twenty-first day of June, 1910, plaintiff commenced an action against the said Atlas Building and Construction Company for the sum of $923.45. In said action .a writ of attachment was issued, and on the twenty-first day of June, 1910, at 5 o’clock p. m., was regularly served on Healy-Tibbitts Construction Company. After judgment, execution, supplementary proceedings, and demand, plaintiff commenced its present action against defendant, alleging that at the time said attachment was served there was sufficient money in defendant’s hands due the Atlas Building and Construction Company to meet the same. On the twenty-third day of June, the defendant accepted from the Atlas Building and Construction Company a surrender and cancellation of the contract.

Defendant claims: 1. That the garnishment was served upon it at a time when there was no money due from it to the Atlas Building and Construction Company; 2. That all money due said company for work performed during the month of June was paid in the discharge of claims for labor performed upon said excavation work which claims were preferred over any claim the company may have had; and, 3. That upon the abandonment of the contract the defendant was compelled to complete the work which had been undertaken by the Atlas Building and Construction Company, and that in doing so it incurred a loss of a sum of money far in excess of any amount which may have been due from it to the Atlas Building and Construction Company.