Martin v. Sharp & Fellows Contracting Co.

SHAW, J.

Action to recover a balance of $1,487.09 for work and labor done by plaintiff as a subcontractor of defendant.

Judgment went for plaintiff, from which, and an order denying its motion for a new trial, defendant appeals.

It appears that defendant, exacting a bond conditioned to protect it from loss in so doing, paid the sum in question, concededly earned by plaintiff in the performance of the work under the terms of a contract made by him with defendant, to one John Mulligan. The defense interposed by answer to plaintiff’s recovery thereof was, first, that the payment so made to Mulligan was pursuant to an assignment of such balance made by plaintiff; and second, that Mulligan was a partner of plaintiff and as such entitled to receive and receipt for moneys due the copartnership.

With regard to the assignment, the evidence conclusively shows, as found by the court, that plaintiff did, on March 31, 1913, assign to Mulligan any and all sums of money due or to become due to him on account of the work and labor the performance of which was called for by his said contract with defendant; that said assignment was made to secure the payment of certain indebtedness then due from plaintiff to Mulligan, all of which indebtedness, long prior to the time of the payment made by defendant to Mulligan, was liquidated and fully paid; due notice of which facts was, in writing, given defendant, with instructions, likewise in writing, to pay said balance to no one other than to plaintiff. In his presentation of the case on appeal, counsel for appellant does not, and indeed, in our opinion, could not, upon the facts stated,

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urge the making of the assignment as justifying defendant in making payment of said sum to Mulligan.

His chief contention is that plaintiff and Mulligan were partners, as to which fact, however, the court made an adverse finding. It is to the alleged want of evidence to support this finding that appellant directs his argument.

While the evidence touching the subject is conflicting, it tends strongly to establish the following facts: Defendant had a contract for the grading of a line of railroad, a subcontract to do a part of which work it let to plaintiff, whose equipment of stock and tools it seems was inadequate for the purpose, and he was likewise without sufficient funds at the commencement of the work to prosecute the same. Mulligan had been engaged in railroad construction and was a man of some means, and his brother, Dave Mulligan, owned a lot of mules and railroad construction equipment which the evidence tends to show were in fact controlled by John Mulligan. Both the Mulligans expressed a desire that plaintiff should obtain a contract of sufficient size and importance to enable him to use the Mulligan equipment during the winter, and John Mulligan, as an inducement to plaintiff to accept the contract for the work and hire the mules and equipment of the Mulligans at $25 per pair per month, plaintiff to receive a like sum for the use of such mules owned by him as he might contribute in the performance of the work, agreed to advance to him such moneys as he might require in the early prosecution of the work and until he received installments of his contract price, due at intervals upon estimates of work done in the progress thereof, in consideration of which John Mulligan was to have one-half of the net profits derived from the contract. Plaintiff and defendant alone were parties to the contract, Mulligan in no way being recognized therein, and it appears that he took no part or interest in the making of the contract or the performance of the work, other than on occasions of infrequent visits when he manifested an interest in the management and use of his work stock. Upon entering into the contract, in January, 1913, plaintiff commenced the work, and up to March, 1913, Mulligan advanced to him. some eight thousand dollars, in evidence of which plaintiff executed and delivered to him a promissory note therefor. Early in March, months before the work was completed, differences arose between plaintiff and Mulligan, due in part to