86 Mich. 199 | Mich. | 1891
Defendant entered into a contract with the city of Detroit for the construction of a bridge, and on November 14, 1887, John Esson entered into a subcontract with defendant for the construction of the piers to said bridge. Esson’s work was to be finished July 18, 1888, and, when completed, was to be entirely freed and cleared of any lien for labor or material; and the contract provided that all subcontractors of said Esson must “have first waived their right to any claim for lien before the payments” therein provided for should be required to be made. It further provided that payment should be made by monthly estimates to the amount of 85 per cent, of the amount of work done and material furnished, and the balance of 15 per cent, at the full completion of the-contract; that defendant might at any time refuse to make any payment to said Esson until he should have presented full releases or waivers of claims or liens by all persons supplying material or labor to him; that, if said Esson should neglect or delay the performance of his agreements therein contained to such an .extent as to-hinder or delay any other part of the construction of said bridge, or in case he should provide such material or workmanship as should be notoriously or obviously unfit with respect to compliance with the plans and specifications of the contract, then, or in either of such cases, said first party (defendant herein) should have the right and authority to rescind and annul the contract, and ta forbid said Esson from entering upon the premises occupied by said work, and might then complete and
Work was commenced under this contract, and on February 13, 1888, Esson entered into a written agreement with plaintiff, which recited the existence of the aforesaid contract; the loan to Esson by plaintiff of the sum of $5,500 “to enable Esson to prosecute the said subcontract;” the agreement by Esson to repay the said sum on or before August 1, 1888; and provided that,—
“If default be made by the said Esson in repayment of the said sum of five thousand five hundred dollars on the day hereinbefore appointed for the repayment thereof, then the said Esson hereby gives to the said Fisken a first charge upon the drawback or sum of 15 per cent, on the contract price of the said work so to be done and performed by him under the said subcontract, and such first charge against the said drawback is hereby given and assigned to the said Fisken as further collateral security for the said advance.”
Notice of this assignment, dated Toronto, June 12, 1888, was mailed to defendant, and received by it June 18, 1888. The notice recited the contract, and concludes as follows:
“Now, therefore, I, the said John Kerr Fisken', beg to notify you . that I claim, by virtue of the said agreement, a first charge and lien upon the drawback or sum of fifteen per cent, on the contract price of the said*204 work to be done and performed by the said John Esson under the said subcontract with you, to the extent of five thousand five hundred dollars, principal, and all interest, commission, or incidental expenses which may be due to me in respect to the same; and I also further notify you to retain the said drawback as aforesaid on my behalf, and not to make payment of the same, or any part thereof, to. the extent of my said charge and lien to any person or persons, corporation or corporations, without my written order and consent.”
Defendant on the same day acknowledged the receipt of this notice, and replied as follows:
“We in the mean time have advanced Mr. Esson considerable" money for the purpose of carrying on the work, and should the 15 per cent., or any portion of it, be required to complete the work, we will have to pay it to him, and cannot undertake to retai-n any sum from Mr. Esson that might jeopardize or impede the progress of the work.”
Plaintiff, as assignee of John Esson, sued to recover the 15 per cent, which was to be reserved under the contract. Upon the trial, plaintiff showed that the work done by Esson under the contract amounted to $26,580.57; that 15 per cent, upon that amount was $3,987.07; and that interest thereon from July 18, 1888, to the time of the trial was $398.70, — making p total of $4,385.77. It did not appear that Esson’s contract had been completed. Defendant showed that $12,809.58 had been paid to Esson directly, and that $24,700 had been paid on account of Esson’s work, and that there yet remained unpaid over $7,000 to stone-cutters and other parties for work done under the Esson contract. Defendant sought to show that it had been compelled to advance this sum of $24,700 to material-men and for labor, in order to complete the structure within the time provided by its contract with the city of Detroit, and to protect itself under said contract; but the court rejected this testimony,
It did not appear just when this $24,700 was paid out by defendant, nor did it appear just what portion of that sum, if any part, was paid after notice of the assignment. It was admitted, however, that this sum had been paid out by defendant, and, if so, it left but $1,880.57 of a balance in defendant's hands, under the Esson contract, irrespective of .the question as to whether or not defendant was entitled to retain that sum until Esson should produce releases for all claims due his subcontractors for labor and material. It appeared that defendant had required from Esson certificates of the correctness of the amounts paid out by it to third parties for labor and material, and the court held that payments made under such certificates were equivalent to payments to Esson.
Plaintiff was in no better position than if Esson's contract had been assigned to him, and he had brought suit thereon, and defendant was entitled to set up in defense any matter which it might have availed itself of had suit been brought under the contract, except, perhaps, voluntary payments to Esson since the notice of the assignment. The fact that defendant, as a further protection to itself, in making payments to third parties, required Esson's certificate of the correctness of the amounts, would not, of itself, preclude defendant from offsetting such amounts, if it was shown that such payments became actually necessary in the conduct of the work. The very object of this reservation of 15 per cent, was defendant's protection, and it was entitled to avail itself of this reserve to do what was actually necessary for the completion of Esson's contract and its own protection. Its lien upon that reserve was prior to that of plaintiff. Plaintiff did not take the assignment of the contract, and had not chosen to assume its control, but had left
Defendant should have been allowed to show when, and under what circumstances, the payments by it were made, and, so far as they were properly made, it was entitled to offset them against the amount of Esson’s work.
The judgment will be reversed, with costs to defendant, and a new trial ordered.
