8 Cal. 353 | Cal. | 1857
The plaintiff declared upon the following instrument in writing:
88,606 67. San Francisco, Jan. 31, 1854.
Please to pay to my own order the sum of eight thousand six hundred and six dollars and sixty-seven cents, for value received, the same to be paid out of the appropriation, as soon as made, for the extra work done to the United States hospital building, in this city; a statement of which has been made out and regularly forwarded, by the proper authorities, to the Secretary of the Treasury of the United States, to be laid before Congress at the present session; this sum being in full of settlement this day made, for the furnishing and laying the brick, in said building,*358 agreeably to the terms of the contract between C. Homer and myself.
Geo. D. Nagle.
To C. Homer, Esq., San Francisco.
On the face of which is written, as follows, in the handwriting of defendant: “ Accepted, C. Homer.”
The complaint avers that the appropriation has been made, and the amount received by the defendant, out of which said draft is payable, and prays judgment for the same, with interest from the date of said appropriation.
Under the proof in the case, the only question for the jury to determine was, whether the contingency had happened, upon which the draft would become due. The appropriation made by Congress, for the hospital, was one hundred and eighty thousand dollars, and the first contract with Homer amounted to one hundred and forty thousand dollars. There were two supplemental contracts, for specific sums, but the amount is not shown-in the record. There was a third supplemental contract, providing that the walls (which, by the original contract, were to be hollow,) should be built solid, and the contractor was to receive fifty-five dollars per thousand, for the extra bricks, and to wait until Congress made an appropriation therefor. The whole amount paid Homer was some two hundred thousand dollars ; some sixty thousand dollars had been paid him beyond the sum mentioned in the original contract, and twenty thousand beyond the appropriation made by Congress.
The plaintiff contends that the understanding of the parties was, that he should be paid as soon as the defendant received compensation for the work from the federal government; and although the contract looked to an appropriation by Congress, still, if the money was paid by the proper department, he was then entitled to receive the amount due, and could not be required to wait for an act of Congress, to pay a debt which had already been satisfied.
This position of the plaintiff would seem to be correct. It is true that the draft was stated to bo due when the appropriation should be.made. But an appropriation was only a means to reach the end contemplated by the parties, namely: the payment to Homer, for the extra brick-work. It was the payment to Homer that' made him liable to Eagle. It does not matter whether Homer was paid in one form, or another, so he was paid.
Whether Homer was paid for the particular extra work, was a question of fact for the jury. Other extra work had been done by the defendant, and whether the payments he received for extra work were partly for this extra work, was a question in reference to which there was a conflict of testimony. The jury
As to the objection to the admission of the testimony of Maj. Tower, we think it is not material, as no injury could have been done by the introduction of those portions which might not have been strictly proper. Taken in connection with the testimony of the other witnesses, no injury was done to the defendant.
Judgment afSrmed.
