Gamache v. South School District

COOPER, C.

This is an appeal from the judgment. No brief has been filed in behalf of any of the respondents, and the entire labor of examining the points made by plaintiff has thus been cast upon this court. The contention is made that certain findings of the court are contrary to the admissions in the pleadings, others outside the issues, and that the judgment is not the legal conclusion from the facts found. The action was brought upon a written contract, made by appellant with the trustees of the South School District, for the erection of a schoolhouse in said district, for the agreed sum of $3,289.

It is alleged in the complaint, that plaintiff, on the seventh day of October, 1897, commenced furnishing materials and building said schoolhouse, and had nearly completed the same according to the agreement, when, on the twenty-ninth day of

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January, 1898, the district, through its trustees, in violation .of the agreement, prevented him from completing the same; that plaintiff furnished materials, and performed said contract according to its terms, until so prevented by the trustees of said district; that plaintiff was paid one half the amount of said contract price, to wit, $1,644.50, and no more.

Plaintiff, in a separate count, alleged that the defendant school district was indebted to him in the sum of $3,800 for material furnished and work done on the schoolhouse, no part of which has been paid, except the sum of $1,644.50, leaving a balance due of $2,155.50, for which judgment is prayed.

The court found that defendant was and is a school district, as alleged, and" that the contract was duly made and executed as set forth in the complaint, and further found: “3. That plaintiff duly performed all the terms and conditions of said contract on his part, until the thirty-first day of January, 1898, and was ready and willing thereafter to duly perform all the terms and conditions of said contract on his part, but the defendants Seeley, Tole, and Grider, claiming to act for said school district, took possession of the schoolhouse building mentioned in said contract, and ousted plaintiff therefrom, and prevented him from performing thereafter the terms and conditions of said contract on his part, and they, without any authority from plaintiff, and with the materials therefor which he had purchased to complete said building, completed and finished the same on the twenty-eighth day of February, 1899, and the same was accepted by said school district on that day; 4. That it was by said contract agreed that out of the moneys payable to the plaintiff by the terms of said contract the school district should first pay the amounts due for materials furnished for said building' by any person to said Gamache to complete said contract on his part, and which he had not paid for, and that the residue of said money should be paid to said Gamache; 5. That said Simpson and Gray furnished to said Gamache, for said building, materials for the construction of said building, and which were used in the construction of said building, and which he did not pay for, of the contract price of and of the reasonable value of $419.88, and they recovered judgment in their said action against Gamache, said South School District, and its trustees, for said sum of $419.88, and costs of suit; 6. That said Thomas and Buell furnished to said Gamache, which have not been paid for, to them or for them,