136 P. 23 | Or. | 1913
delivered the opinion of the court.
It appears from the record that on July 17, 1911, the Idaho Glazed Cement Pipe Company, a corporation of the State of Idaho, entered into a contract with the City of Baker for the excavation of a trench and
Defendant pleads and its counsel insist with earnestness that upon the evidence introduced the defendant is not liable to these merchants for the supplies, consisting of flour, meat, tobacco, clothing, etc., furnished the men under the arrangement, and a small amount of feed supplied for the teams employed upon the work. By the terms of the defendant’s contract with the city the former agreed to furnish all material and do all the work necessary to construct the conduit. The contract provided in part that the contractor should not sublet, assign or transfer the contract, or any part thereof, without the consent of the board of commissioners; that the contractor was to take entire charge of the work during its progress, subject to the supervision of the engineeer and of the board of commissioners ; that the contractor with its sureties should be liable for any damages caused by any negligence; that if any person employed by the contractor on the work should appear to the engineer to be incompetent or to act in an improper manner, he should be discharged. A bond in the sum of $30,000 was required to be furnished by the contractor conditioned upon a full performance of the contract.
The court, among other instructions to the jury, gave the following: “If you find that the defendant in this case authorized and sanctioned Atchison to procure the goods to apply on the payment of wages, and that the defendant undertook and agreed to pay for all labor used in the construction of the conduit referred to in this case, knowing that a portion thereof was paid for in goods or merchandise, and you should further find that any of the goods mentioned were delivered or furnished to the laborers and not paid for, and the amount thereof deducted and retained by the defendant out of the amount due for such labor, knowing that such goods had not been paid for, then plaintiff would be entitled to recover the amount of such goods as you may find were so furnished and not paid for, and actually so deducted and retained by the defendant, if you find any were so deducted and retained.” Defendant by its counsel duly excepted to this instruction. Under our view of the contract between the defendant and the city, this instruction was as favorable to the defendant as it could reasonably expect.
The question of the agency of Atchison was also submitted to the jury, and much evidence was iñtro
The complaint describes the transaction in full, and the evidence supports the allegations of the complaint; therefore it becomes unnecessary to examine the record as to the other errors assigned.
The judgment of the lower court is affirmed.
Affirmed.