Miller v. Board of Education

TEMPLE, J. — Under a contract with the defendant the plaintiff built a schoolhouse in the city of Sacramento. The building was completed and accepted, and this action is brought to recover a balance alleged to be due on the con[608]tract. The defendant pleaded payment, and this controversy arises in regard to the sum of fourteen hundred and fifty-two dollars and fifty cents, which was paid by the defendant to Avery on account of lumber sold by him to one Austin, a subcontractor under the plaintiff. The defendant claims that this payment was authorized by the plaintiff, or that the payment having been made for him, or on his account, was afterward approved and ratified.

Judgment was rendered for the defendant, and this appeal is from an order denying plaintiff’s motion for a new trial.

So far as the evidence is conflicting, the presumptions are in favor of the judgment, and the plaintiff relies for a reversal upon the evidence offered by the defendants and the evidence of the plaintiff so far as it is uncontradicted.

The only witnesses called by the defendant were Hill and Avery, both of whom were members of the board of education. Hill, who was city superintendent of public schools, testifies that he attended to the disbursing of all the money; and it appears that no payments were made without first obtaining a certificate from the architect and the receipt of plaintiff. Hill also testifies that about the time of the completion of the building Avery expressed a desire to have his bill against Austin paid out of the moneys due plaintiff on the contract; that Avery afterward told him he had seen Miller, that Miller said it was all right, and that he had better pay him out of that money, and thereupon he paid Avery the amount of Austin’s bill and took Avery’s receipt. Sometime during the following week he met plaintiff and-told him he had paid Avery’s bill, and plaintiff thereupon said: “I am glad of it; it’s all right.” That afterward plaintiff was present at a meeting of the board at which this bill was mentioned as having been paid, and he then made no objection. It appears, however, from the testimony of this witness that prior to the payment of Austin’s bill the plaintiff had complained to Hill of Austin’s accounts and repeatedly said he wished the money paid to him, plaintiff, that he might settle this bill himself, and that after the payment hé complained that the whole bill ought not to have been paid, as a portion of the lumber was not used in the building, and although at the time he was present at the meeting of the board, he made no specific complaint on account of