113 P. 739 | Idaho | 1911
This action was brought against John W. Monarch and William S. Porter, as copartners, and also against the Title Guaranty & Surety Co., to recover the sum of $4,433.22, alleged to be due for labor and merchandise furnished the defendants Monarch & Porter by plaintiff and his assignors while Monarch & Porter were engaged in the construction of an irrigation system for the United States government near Rupert in this state. Monarch & Porter were contractors under the government for the construction of an irrigation system on what is commonly known as the Minidoka Reclamation Project. Prior to entering upon the work, the ’defendant, the Title Guaranty & Surety Co., became surety for the contractors to the effect that they would faithfully perform the work stipulated in the contract. Early in 1906, defendants Monarch & Porter notified the government and also the defendant surety company that they were unable to proceed further with their contract, and the surety company immediately took possession of all the property on the works belonging to Monarch & Porter, and notified the.
At the time the surety company took over the contract ana undertook to carry out and discharge its terms, there was a large sum due from the government to Monarch & Porter., and there was at that time a disagreement between the contractors and the government as to the true amount due, on account of a diversity of opinion as to the proper estimates to which the contractors were entitled. The government apparently conceded, however, that there was about $35,000' then due the contractors. The contractors were largely in debt for material, supplies -and labor, and, among other things, were indebted to the plaintiff herein and his assignors in the sum sued upon. The company retained Monarch and Porter each at $100 per month to carry on the work, and the- company sent its agents to supervise the matter of purchases and expenditures -and to pay the bills as the same were incurred and to generally superintend the work. During this time the disbursing agent for the company paid some of the debts which had been contracted prior to the time the company took over the works, and it is claimed by the plaintiff in this case that the surety company’s agents promised and’ agreed that the company should pay the claims, involved in this action. The trial court found against the plaintiff on this contention, and there is a conflict of the evidence on that point, and if that were the only question in the ease, it would' determine this appeal in favor of the judgment of the lower court.
There is, however, one state of facts shown by the plaintiff and not contradicted or disputed by the defendant surety company which, in our judgment, is sufficient to hold, the defendant company and to consequently require a reversal of the judgment in this case.
John Porter, who, it appears, was acting as attorney for-Monarch & Porter, went to Washington, D. C., in. February, 1907, for the purpose of securing an adjustment, if'possible, of the claim of Monarch & Porter against the government,,
This evidence, uncontradicted and undisputed as it is in the record, is sufficient to charge the surety company with the debt sued upon. It shows unmistakably that the company received the sum of $19,482.67 from the government, which sum had been earned by Monarch & Porter and was due to Monarch & Porter at the time that the surety company took over the contract and undertook to complete the works. It also shows that they received this money for the use and benefit of the creditors of Monarch & Porter, and with the understanding on the part of Monarch & Porter, who were speaking through their attorney John Porter, that this sum was to be paid over pending a final settlement of the differences between Monarch & Porter and the government for the purpose of meeting the debts of the contractors to laborers and others who had previously furnished material and supplies in the construction of the works. The company could not receive this money which it had not earned and which was due to Monarch & Porter, and was therefore their money, and appropriate it to its own use, and then when sued by one of the creditors for whose use it was paid, plead that there was no consideration or no original promise or contract whereby the company had obligated itself to pay the debt.
It is strenuously argued by counsel for respondent that there was no consideration for either an express or implied promise to pay appellant Beymer his claim out of the money thus received from the government. We answer that contention by saying that the receipt of the money itself is sufficient consideration.
It has also been urged that the action is against the surety company as a surety for Monarch & Porter and not as an orig
For the reasons above set forth, the judgment must be reversed, and it is so ordered and a new trial is granted. Costs awarded in favor of appellants.
Petition for rehearing denied.