131 Tenn. 191 | Tenn. | 1914
delivered the opinion of the Court.
This suit was brought upon the following paper:
“Whereas, we, G-. C. Anderson & Company, of Jackson, Tennessee, a firm composed of G-. C. Anderson and S. P. Anderson, are indebted to the Ahrens & Ott Manufacturing Company, in the sum of $1,641.20';
“And whereas, we are desirous of securing payment of said indebtedness to the amount of $1,000;
“And whereas, George Moore & Sons, of Nashville, Tennessee, are indebted to the firm of G. C. Anderson & Company, in excess of the sum of $1,000;
“Now, therefore, we do hereby make over, transfer, and assign to the Ahrens & Ott Manufacturing Company, $1,000 of the indebtedness due us by George Moore & Sons of Náshville, Tennessee, the sum to be applied as a credit on the amount due by us to the Ahrens & Ott Manufacturing Company, and we do hereby authorize and request George Moore & Sons bf Nashville, Tennéssee, to pay to the Ahrens & Ott Manufacturing Company, the sum of $1,000 on the presentation to George Moore & Sons, of Nashville, Tennessee, of this transfer and assignment.
*194 “Witness our Rands this tRe 5 th day of June, 1911.”
Under these facts it is insisted by defendants that they are not liable to pay complainants anything on the order. We think this contention is sound. In the case of Montague v. Myers, supra, the order was drawn on Montague, requesting him to pay $200 “out of the twenty-five per cent, back pay for foundation at old Crutchfield grounds,” and was signed W. A. Howard & Co. The latter soon after absconded without completing the work, but Montague hired hands and finished it. It seems that Montague accepted the order generally, though the terms of the acceptance are not stated in the opinion of the court. The court said:
“We think the facts show a verbal acceptance; but this order was drawn on a particular fund, and Montague was only bound to pay it in the event there was such fund.”
It was held in that case, however, that inasmuch as Montague did not insist on a forfeiture of the back pay due to Howard & Co. by reason of their failure to complete the contract, but himself finished the work, and as on this basis there was found to be due Howard & Co. enough to pay the order, it was his legal duty to pay it. Other eases in point are Jenkins v. Wells, 90 Mich., 515, 51 N. W., 636, and Beardsley v. Cook, 143 N. Y., 144, 38 N. E., 109.
In the first of these cases it appeared that Mason & Co. had agreed to finish the drilling of a salt well for
‘ ‘ Said money to be paid when the undersigned shall have reached the depth of 1,800 feet in the drilling aforesaid, or as soon as salt be found therein at any time before said depth shall have been reached.”
The acceptance was:
“I hereby accept the foregoing order; the depth to he 1,850 feet, instead of 1,800 as above, and subject to all the conditions expressed in my contract with said Masons. ’ ’
The order was dated August 9,1886, and Mason quit work on the 16th or 18th. Wells had to complete the work at his own expense. It was held that he was entitled to credit for what it cost him to complete the work. The case does not show what were the terms of the contract referred to in the acceptance.
In the second case it appeared that Cook had employed certain builders to construct some houses for him. The builders entered upon the performance of their contract, and on the 11th of December, 1890, a considerable part of the work had been done, when the plaintiff Beardsley procured from the builders a written order upon defendant Cook in which they requested him to retain and pay to Beardsley from the last payment to he made to them under their contract the sum of $1,175, according to the terms of their contract with the plaintiff. Cook wrote across the face of the order his acceptance. An action subsequently brought on the accepted order. The builders never completed the
“Mr. Moore stated to ns that the assignment was all right, and that the same wonld be .paid as soon as he could get a settlement from the government for the work that was done on their contract on the post office at Jackson, Tenn. I asked Mr. Moore particularly if he owed George C. Anderson & • Co. $1,000', and he stated that he owed them something more than $1,000, and that he was just simply waiting for the work to be approved by the inspector that the government had sent to Jackson. . . . He stated positively he would pay it as soon as he could get a settlement with the government.”
The necessity requiring payment of other sums in order to complete the contract of G. C. Anderson & Co. developed after this conversation with the representatives of complainants, as a result of which there was nothing left or owing with which to pay the sum assigned.