122 Minn. 286 | Minn. | 1913
This action was brought to recover of defendant tbe sum of $2,077, tbe amount specified in tbe written instrument hereinafter set out. Tbe case was tried to tbe court without a jury and resulted in a decision in favor of defendant. Plaintiff appealed from tbe judgment entered on such decision.
EXHIBIT 1
St. Paul, Minn. Nov. 14, 1902.
For value received, I hereby promise to pay to W. G-. Jordan, of Washington county, Minnesota, the sum of two thousand and seventy-seven dollars ($2077.00), and interest thereon, if interest is paid, out of the moneys at any time received on the estimate, a copy of which is hereto attached, and not otherwise. In case said estimate is not paid in one sum, but in instalments from time to time, the understanding is that any such partial payment shall be divided between me and said Jordan in the proportion of $9625.00 to $2077.00.
(Signed) W. E. Peet.
The estimate attached to the above instrument was as follows:
EXHIBIT A
City of East Grand Forks,
Minnesota.
Contract No. 1.
Contract dated Aug. 13th, 1902.
Contractor P. IT. Thornton.
Total Bid ....................................$12,797.95
Estimates allowed.
East Grand Forks, Minnesota, Nov. 8th, 1902.
Estimate No. 2.
2394.2 ft. of curbing in place @ 72c............ $ 1,723.84
5421 cub. yds. of excavating @ 27e.............. 1,163.00
9000 sq. yds. of slate macadam @ 1.39 .......... 12,510.00
15,396.84
Less amount to Oct. 7th, 1902, as per.............. 3,695.00
Amount due contractor......................... 11,701.84
Work done according to contract and specifications.
I certify the above to be correct, and allow the above estimate.
Thomas L. Lawson, Engineer.
The trial court found in substance the following facts: The estimate attached to the written instrument, and hereinbefore set out, was evidence of a claim of $11,701.84 due from the city to Thornton for paving and curbing done under the contract between them referred to in the estimate. Thornton had, prior to November 14, 1902, assigned this claim to defendant. Jordan assigned the written instrument to De Pue, and the latter assigned it to plaintiff, both assignments being for a valuable consideration. The amount owing from the city of East Grand Forks, evidenced by the estimate, became due and payable December 10, 1902. Payment was demanded and refused. The charter of the city contained a provision, limiting the time within which actions against it to recover on claims arising ex contractu might be brought to two years. Defendant was unable to obtain payment of the claim, and for the purpose of enforcing payment and preventing the loss of the claim, in August, 1904, brought suit against the city. The suit was tried twice in the district court, and heard twice in this court, and finally resulted in a
In the prosecution of this suit, defendant necessarily expended for counsel fees and other expenses the sum of $4,948.49. De Pue became the owner of the written instrument before the suit was instituted, and both he and plaintiff knew of the pendency of the suit, did not object to its prosecution, but encouraged defendant in such prosecution and approved of the same.
After the entry of the judgment, defendant, acting in good faith and in the exercise of his best judgment and discretion, without any consideration to him moving, and for the purpose of insuring the ultimate collection of said judgment with the least trouble and expense, and establishing a practical arrangement whereby the city could pay such judgment, entered into an understanding with the city whereby it was permitted to pay the judgment in annual instalments, and on June 23, 1910, defendant collected $1,500 on account thereof, and on May 4, 1911, $3,000 on account thereof, making a total of $4,500, which is all defendant had collected at the time of the trial.
As conclusions of law, the court determined that plaintiff was not entitled to the relief demanded in his complaint; that defendant was entitled to judgment permitting him to offset and reimburse himself for the sum of $4,948.49 expended in prosecuting the judgment, against and out of any moneys he had collected or should in the future collect on said judgment, until said sum of $4,948.49 and interest has'been fully paid; and thereupon and thereafter that defendant shall pay to plaintiff 2077/11702 of any moneys received or collected by defendant on said judgment in excess of said sum of $4,948.49 and interest.
In making these findings and in reaching its conclusions, the trial court did not consider certain evidence that had been received subject to objection, which showed quite conclusively the following facts
The first question is whether or not the trial court was correct in allowing defendant to reimburse himself out of the money received and to be received by him from the city for the expenses paid in the suit to obtain the judgment.
This language in itself indicates that the maker and payee were jointly interested in the claim represented by the estimate, and in the proportions stated. The payee was to receive nothing unless the claim was paid. He was to receive interest only if interest was paid on the amount of the estimate, and if the claim was paid from time to time in instalments, he was to receive only his proportion of each instalment. Furthermore no time is specified. It is quite clear that defendant was not obliged to pay the $2,077, unless and until he succeeded in collecting the claim from the city. The attached exhibit showed what this claim was, an estimate allowed to contractor Thornton on a contract for paving and curbing. In short, from the writings alone, it seems to us a case where the payee and his assigns, as well as the defendant, were vitally interested in establishing the validity of the claim against the city, and in enforcing its payment.
It is entirely certain that, but for the institution of the action against the city, the claim would have been wholly lost, and plaintiff, as well as defendant, would have been the possessor of a valueless piece of paper. Plaintiff concedes in his complaint that the lawsuit was necessary, and he must appreciate that the result was greatly to his advantage. Nevertheless he insists that defendant had obligated himself to pay plaintiff $2,077 out of the moneys received from the city, with nothing said as to who should stand the expense of collection, if such expense should become necessary. Plaintiff relies on his bond, and wants his pound of flesh. It was doubtless assumed when the instrument was given that the city would pay the estimate, either in one sum or in instalments, and that no expense would be incurred in the collection. But it can hardly be doubted that, if incurring such expense became necessary, each of the interested parties .ought to pay his share.
It needs no citation of authority to establish that when one of two» or more persons who are interested in a common fund is obliged, in order to secure or preserve that fund for himself and the others interested, to maintain a lawsuit and incur expenses, equity will compel all interested to contribute to the cost. Applying this principle to the facts here, plaintiff cannot have the benefit of the suit brought by defendant against the city without paying his share of the expenses of such suit. In other words, the expenses of collecting the common fund should be paid therefrom before it is divided between plaintiff and defendant in proportion to their respective interests.
The findings of fact which are attacked are either sustained by the evidence, or are on immaterial matters.
Some criticism is made of the allowance made to defendant for ■sums necessarily expended in the prosecution of the suit against the ■city. Attention is called to an item of $150 paid to other counsel, and to items aggregating $691.46 for certain disbursements which are -claimed were taxable as costs against the city. We find no good ground for disturbing the decision of the trial court as to the amount to be allowed defendant for expenses.
Our conclusions are in entire accord with those reached by the learned trial court; The result is equity and is legally right.
Judgment affirmed.