103 Wis. 6 | Wis. | 1899
On October 20, 1893, the defendant Martin entered into an agreement with the defendant city whereby Martin agreed, in writing, to furnish all materials and implements, and perform all the labor and do the paving upon the several streets therein named for seventy-eight and one-half cents per square yard, and to do the grading therefor for nineteen cents per cubic yard, and to furnish materials and do the curbing therefor for thirty-two cents per lineal foot, according to the plans and specifications for such work on file in the office of the city clerk of Menasha, and the same was to be paid for by the city, on the completion of the work to the satisfaction of the common council, by orders duly issued by the mayor and city clerk by direction of the common council, and each order payable July 15, 1894; that Martin should furnish a good and satisfactory bond in the sum of $1,500 for the performance and completion of such work, to be approved by the mayor and common council. On November 2, 1893, the defendant Martin entered into an agreement with the plaintiffs whereby they agreed, in writing, to furnish and deliver the necessary lumber and cedar posts for blocks according to such plans and specifications so on file, to be used in paving the streets mentioned in the contract between the city and Martin, to be delivered on or before November 15, 1893, and Martin agreed therein to pay the plaintiffs therefor fifty cents per square yard for material delivered, and the plaintiffs were to accept for payment of the samé a city order of Menasha, payable on or before July 15, 1894, to be secured and paid
At the close of the trial the jury found the facts as stated^ and also found that the defendant bank was a purchaser in good faith, for an adequate consideration, of the order for $1,913.19, dated December 19, 1893, a few days after its issue to Martin, as final payment upon his contract with Menasha. Such findings of the jury were confirmed by findings of the court. And as conclusions of law the court found, in effect, that the plaintiffs had no claim against the city, and were not entitled to recover in this action, but that the defendant city and bank were entitled to judgment for costs and disbursements against the plaintiffs.
Erom the judgment entered thereon accordingly, the plaintiffs bring this appeal.
Ve assume, for the purposes of this case, that the court had jurisdiction by virtue of the appeal taken by the plaintiffs' from the disallowance by the common council. Martin, being liable to the plaintiffs upon his contract, allowed the case to go by default, as to him. The plaintiffs were certainly not aggrieved by the making of Martin a party defendant. Stats. 1898, sec. 3048; Bragg v. Blewett, 99 Wis. 355, 356, and cases there cited. The plaintiffs obviously had no right of action against the bank, unless it had a right of action against the city. The contract of the citywas with Martin, and not with the plaintiffs. The contention that Martin’s order to the plaintiffs upon the city was the assignment of the whole of his contract with the city to the plaintiffs is without any foundation in fact. That order was only for fifty cents per square yard of the pavement. It contained provisions to which the city never assented. This court has just held that “ an assignment by a creditor of a portion of his claim is not binding on the debtor, unless he assents to such severance of his liability.” Skobis v. Ferge, 102 Wis. 122. The reasons there given by Mr. Justice Dodge for such
By the Court.— That portion of the judgment of the circuit court appealed from is affirmed.