Pensacola Railroad v. Schaffer

76 Ala. 233 | Ala. | 1884

SOMERYILLE, J.

— The action is one for the enforcement of a mechanic’s lien, under the provisions of our statute. — Code, 1876, §§ 3440, et seq.

The first point raised is, whether the plaintiff, Schaffer, can be properly regarded as an “ original contractor,” within the meaning of the statute. The record show’s that one Beuz was the party with whom the defendant made the first contract for the construction of the hotel building, in reference to w’hi'ch the present controversy arises. This was in June, 1877. During the latter part of the ensuing month, this contract was transferred by Beuz to the plaintiff, who, by consent of the defendant, proceeded to carry out its provisions by the completion of the work. If this transfer had been made without the consent of the defendant- — the Pensacola Railroad Company — there might be much force in the argument, that the transferree could not enforce the lien claimed ; because it is purely statutory, and the statute confers the remedy only on the original contractor, and not on one claiming by assignment or transfer from him. But such is not the status of the case. It is shown that Beuz, after collecting nearly all that was due him under his contract, had abandoned it; and the agreement of July 26th, 1877, evinces an intention to substitute the plaintiff in his stead, so far as all future transactions were concerned. The agreement of the railroad company expressly declares, that they will in the future deal with Schaffer, “ as if he were the original contractor” — making all payments to him, as the only authorized person whose receipt was to be recognized as good. It does not affect the case, that Benz was not released from liability for his breach of contract in the past. The plaintiff entered upon the performance of his agreement, upon the faith of the promise that, he was to be dealt with as “the original contractor.” Having completed the work, upon the assumed truth of the defendant’s covenant in this particular, nothing can now be asserted to the contrary, which would operate to the prejudice, of the plaintiff. The defendant is clearly éstopped from now' denying that the plaintiff is an original contractor.

2. The original of the telegram from Ciiipley was shown to be in Florida, beyond the jurisdiction of this State. This fact rendered the copy admissible, as secondary evidence of its contents, upon a principle often decided and now’ well settled. Gordon, Rankin & Co. v. Tweedy, 74 Ala. 232; Whilden v. Mer. & Pl. Nat. Bank, 64 Ala. 1.

The proceedings before the justice of the peace, in which judgments were rendered against Beuz, and also against the railroad company as garnishee, in favor of certain employees of the former party, were clearly without any binding force on the plaintiff, who was no party to the suits. The claims of employees are made a lien by the statute, only on any unpaid balance due by the proprietor, or owner, to the contractor who employed them. — Code, § 3449 ; Childers v. City of Greenville, 69 Ala. 108. The railroad company, as garnishee, should have protected themselves, by seeing to it that no greater sum was condemned in their hands than the unpaid balance due by them to Benz. Schaffer, as we have said, was no party to these proceedings, and could not, therefore, be prejudiced by them. This is not only the rule of the common law, but is expressly declared, in plain terms, by the statute under which the proceedings are authorized. — Code, 1876, § 3447. It is needless, in this view, to consider whether the complaints filed in the justice’s court set out the facts necessary to give the court jurisdiction according to the requirements of section 3446 of the Code.

The action was properly brought in the name of Schaffer, as “ the party really interested,” within the meaning of section 2890 of the Code. He was not only the transferree of the contract, which was one for the payment of money, but he possessed the exclusive right to collect and receipt for the money ; so that payment to no other person would be valid, without his order or assent. — Leonard v. Storrs, 31 Ala. 488. The case is unchanged by the agreement of the plaintiff to pay Beuz a certain part of the profits which he might realize from the transaction. This conferred on Beuz no claim to any portion of the specific money that might be collected, but merely made the plaintiff his debtor for a fixed per-centage of the profits, in the contingency that any should be realized, of which there is no proof contained in the record.

The various rulings of the court were clearly free from error, in the light of the foregoing principles.

Affirmed.