25 Vt. 185 | Vt. | 1853
The opinion of the court was delivered by
The plaintiffs, having recovered a judgment against the principal debtor, are also entitled to a judgment against the trustees, if at any time after the service of the trustee process, and before disclosure, any goods or effects of the principal debtor have come into their hands or possession. In other words, if) during that period, there was any indebtedness from Huntoon & Dow to the defendant Merrow, which he could have enforced against them, that indebtedness has been secured to these plaintiffs, by the attachment and service of this process; and to the amount of that indebtedness, and their claim against the principal debtor, the plaintiffs are entitled to recover judgment.
In the investigation of the question whether such indebtedness exists, the case presents two subjects for examination. In the first place, does such indebtedness arise from the monthly estimates, and payments which were to be made by Huntoon & Dow to Merrow? and in the second place, is there such an indebtedness arising
If this question had arisen on the contract between the Railroad company and Huntoon & Dow, we think it quite obvious, that such payment by the company to the laborers on the road, would not only be a discharge of their liability to Huntoon & Dow, but the money retained for that purpose under the provisions of their contract, would not be subject to be attached .under a process of this character, as a debt due to Huntoon & Dow. By that contract with the company, Huntoon-& Dow were to construct sections six and seven of the Rutland division of the road, and by an express provision of that contract, “ the corporation were authorized to “ retain in their hands for the payment of the workmen, such an “ amount of the monthly estimates, as the engineer may deem “proper for that purpose, and the engineer is authorized to adopt “ such measures for the disbursement of the money as he may con- “ sider judicious.” Under this provision, the parties would be bound by any act of the engineer, in retaining and disbursing the money in payment of the laborers on the road; and Huntoon &
The question in this case, however, does not arise on this contract, except so far as it is made, by express reference thereto, a part of the contract between Merrow and Huntoon & Dow. In relation to the contract with Merrow, we find that it was executed on the 20th of January, 1849, “by which Huntoon & Dow sub- “ let to Merrow the south end of section six of this road, and Mer“row agreed to complete the same according to the terms and “ specifications in the contract of Huntoon & Dow with the Rail- “ road company, and to be under the same liabilities, obligations “ and restrictions in every particular in regard to said work, that “ Huntoon & Dow were under by them contract with the company;” to which contract reference is,made, to ascertain the nature and extent of those liabilities, obligations, and restrictions.— This contract should be construed and enforced so as to carry into effect the evident intention of the parties. "When the expression is used, that Merrow is to be under the same liabilities, obligations and restrictions in every particular, in relation to the work upon the road, that rested upon Huntoon & Dow, they manifestly referred to the contract, as an entire contract, regulating not only the manner in which the work was to be performed, but the manner in which payment therefor was to be made; so that whatever liabilities and restrictions rested upon Huntoon & Dow on their contract, were assumed by Merrow in his contract with them. Merrow, in relation to that part of the road, was to occupy the same position they occupied, or stand in them shoes, having the same rights against Huntoon & Dow, which Huntoon & Dow had against the company, and subject to the same liabilities to them, which they were under, except so far as express provisions were made in their contract to the contrary. And as the company had the right, as against Huntoon & Dow, to retain the amount due the laborers, and pay the same to them, the same right existed in favor of Huntoon & Dow against Merrow, otherwise he would not be under the same liabilities and restrictions they were under. Thus, when the
In relation to the claim of five .and. seven cents per yard for
The contract by Huntoon & Dow was absolute, to pay a-given sum for certain work; and-though in the peíformánce of that work; all the provisions of their special contract may not have been eomplied-with, and some-uncertainty may exist as to the amount due Merrow thereon, yet the claim is not of that contingent character, that exempts it from'the operation of -the trustee act. Whatever, therefore, the labor of Merrow was worth, in.,making that earth and rock excavation, -and which was expended upon the road be