Pohlman v. Wilcox

SMITH, C.

This is a suit to recover the sum of five hundred dollars, with interest, alleged to he due from the defendants on a written contract. The defendants had judgment, from which and from an order denying his motion for new trial the plaintiff appeals.

The case is: The defendants were under contract to construct a certain building for the government of the United States, and one Craig had contracted with them to furnish the stone for it for the sum of twenty-seven hundred dollars. Craig assigned to the plaintiff “all of [his] interest in the last payment to be made to [him] under the . . . contract,” —which was twenty-five per cent of the contract price; and thereupon, the defendants executed to the plaintiff the written promise sued on, which is as follows:—

“Los Angeles, August 7, 1901.

“Phillip Pohlman :

“Sir: We will pay you the amount of five hundred dollars ($500) on M. Craig’s order, out of the moneys due him from us in his contract with us for the stone work on the Sherman Institute to be built at Riverside, when said money is due him.”

This promise was repeated by a subsequent letter to the plaintiff, of date September 5, 1901, wherein the defendants say: “We will hold the $500 out of the last payment due Mr. Craig for you as you request.” .

It is found by the court, in effect, that Craig abandoned his contract “before there was any money payable on defendants’ said promise,” and it is claimed by the appellant that this finding is not supported by the evidence. But the only dis

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pute on this point is as to the date of the abandonment; and it is not disputed that this took place, if not before, at least on, the seventeenth day of May, 1902; at which time, it is also admitted, the contract had not been performed; and it also appears, without contradiction, that the completion of it cost the defendant fifteen hundred dollars more than the contract price. But the position of the appellant is, that at the time of the abandonment the defendants had paid the full amount of the contract price; and that the defendants’ promise to pay had thus become absolute.