61 Minn. 395 | Minn. | 1895
The defendant corporation demurred to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, and from an order overruling the demurrer it appeals.
The complaint alleges that on May 9, 1893, the defendant entered into a contract with the firm of Wolf & King, whereby they agreed to perform certain work in grading a certain branch of defendant’s railroad, and whereby defendant agreed to pay them therefor a certain price, payable on monthly estimates. By the subsequent agreement of the parties, the time for performance on the part of Wolf & King was extended to November 1, 1893. That shortly prior to the date of this contract Wolf & King and plaintiff entered into a contract, whereby plaintiff agreed to perform a part of this work, and they agreed to pay him therefor; and on June 3 following they and plaintiff entered into another contract, whereby plaintiff agreed to perform, another part of this work, and they agreed to pay him therefor. By the terms of each of these contracts, they agreed to pay plaintiff “monthly, upon the engineer’s estimate, less 10 per cent.,” which was to be retained until the work was finished, and by a subsequent agreement the time for performance on the part of plaintiff was extended to November 1, 1893. It is further alleged that plaintiff entered on the performance of said two last-named contracts, and performed the same in all things during the months of May, June, and July, 1893; that the work so performed during each of said months was duly estimated, as provided for in the contracts, and that by said estimates there was due plaintiff from Wolf & King certain sums of money, which they wholly failed and neglected to pay plaintiff; and for these defaults plaintiff refused to proceed with the contract, but proceeded to abandon the same; that the failure of Wolf & King to pay plaintiff, as aforesaid, was caused by the failure of the defendant to pay Wolf & King,
It is contended by appellant that there is no consideration for its promise to plaintiff to pay him anything for doing this work, as it already had a contract with Wolf & King for the doing of the same work, and that Wolf & King had not attempted or threatened to abandon or rescind their contract with it. Appellant’s position is wholly untenable. It is no concern of plaintiff’s that Wolf & King may have been willing to perform their contract with defendant. On account of the defaults of Wolf & King, plaintiff was not
The order appealed from is affirmed.
Buck, J., absent, took no part.