Rauer v. Fay

Street Work—Private Contract—Action by Assignee—Pleading— Evidence—Variance—Uncertainty op Contract.—In. an action to foreclose a lien for street work under a private contract, which had been assigned to the plaintiff, where the contract and the contents of the lien are pleaded merely according to their legal effect, and the complaint counts upon a contract to grade the south half of a street between certain cross streets, a contract offered in evidence which merely provides for the grading of one-half of the street, but is silent as to which half is to be graded, it is too uncertain and indefinite to be admissible in evidence under the allegations of the complaint.

Id.—Right of Lien not Assignable—Work Done by Assignor—Omission op Material Finding. — Although a perfected lien may be assigned, the mere right to a lien in the present or future is not assignable; and in an action by an assignee to foreclose a lien, where the evidence established without contradiction that part of the work of grading upon which plaintiff claims alien was performed by his assignor before the assignment, and the answer raises an issue upon that question, such issue is material, and a failure to find thereon is ground of reversal of a judgment in favor of the assignee.

Id.—Conditional New Trial Order—Remission op Part op Recovery —Silence op Record—Presumption.—Where the court below denied a motion for a new trial upon condition that plaintiff should remit ten per cent of the amount of his recovery, if the record is silent as to the cause of the remission, it cannot he presumed that the reduction was on account of labor performed by the plaintiff’s assignor, where the evidence shows that a portion of the work was never completed, and the remission might have been made on that account.

Id.—Evidence — Release bv Contractor at Time of Contract.—A paper executed simultaneously with the contract relied upon by the plaintiff, in which the contractor certified that he had no claim upon the defendant for any work performed on the street in question by another person named, or by himself or assigns, in doing the balance of grading on the street, is admissible in evidence for the purpose of showing that it was the intention- of the contractor to release the plaintiff from all liability.

Id.—Object of Contract—Nominal Signature—Knowledge of Contractors—Fraud—Province of Court.—If the contract was signed by the defendant only as a nominal party to enable the parties in interest to secure a sufficient number or proportion of the landowners on the block to obtain a permit from the superintendent of streets to make the improvement, and this was done with the knowledge and consent of the other contractors, it would not be a fraud upon them; but if it was a secret or side agreement between the contractor and defendant, made in fraud of the rights of the other contracting parties, the court may investigate and determine that question.