Simms v. Hampson

12 P. 686 | Ariz. | 1887

BARNES, J.

This is a suit by Simms, plaintiff, against defendants, Sampson and Garland, for a balance he claims to be due for work, labor, and material furnished on a contract. Defendants had contracted with one Underwood for the construction of a railroad from Lordsburg to Clifton, according to the ordinary terms of a railway contract, and they sublet the construction of three tunnels, on the line, to plaintiff, agreeing to pay him 5 per cent, less than their contract price for the work with Underwood. Simms undertook to excavate said tunnels, of the “size, character, and length required by the engineer of the railway company under the original contract,” and defendants undertook “to pay for the work done in any one calendar month, on or before the fifteenth or twentieth of each calendar month following, less 10 per cent, thereof; which shall be retained until the completion of the work,” subject to all instructions by the engineers of the railway company; and he agreed to be bound by the provisions of the contract of defendants with Underwood, and that all estimates of work done or claimed by him should be made by the engineers, by virtue of said original contract, which was therein referred to and made part thereof, and the stipulations therein .made stipulations between Simms and defendants except so far as. they conflict. The original contract provided for monthly payments for work done, less 15 per cent., on the certificate of the said engineers. There is a material difference in these two contracts as to time of payment. In the first Underwood undertook to pay monthly for the work done, on'the certificates of his engineers. In plaintiff’s contract with defendants the latter contracted to pay for the work done in a calendar month, on or before the fifteenth or twentieth of the next month. The meaning of these contracts is clear. Defendants could demand payment from Underwood at the end of each month on the certificate of the engineers. In their contract with Simms they contract to pay him 15 or 20 days later, with the evident purpose of giving them time to get said certificates, and inspect the work and verify the same.

It is contended that these contracts are to be construed to mean that Simms was to be paid after the middle of the month, tion for work done in the preceding month, only on presentation of the certificate of Underwood’s engineers of the amount of work he had done. We do not think the contract can bear that construction. Defendants had agreed to monthly estimates and payments to them by Underwood, on the certificate of the engineers, and they also agreed to pay Simms the fifteenth or twentieth of the month for work he had done. This gave them 15 or 20 days after they could put Underwood in default before they were to be called on by Simms, and the terms were made evidently for that purpose. It is a stretch of construction to hold that Simms, before he could put defendants in default, should get the certificate of the engineers of the other party to the original contract, and with whom he had no contract, and upon whom he could not call for estimates, and by doing so put them in default. There was no privity of contract between Simms and Underwood. Defendants, on the other hand, could demand of Underwood that his engineers estimate the work, and certify the same, and, in default thereof, demand payment for the work done. The contract by defendants with Simms was that they would pay him, on the fifteenth or twentieth of each month, for work he had done in the preceding month, and it was for them to secure the certificate of work done. On the twentieth day of each month, therefore, there was due Simms the amount of work done by him in the preceding month, at the contract price, less 15 per cent. He then had a right of action therefor.

The statute (Comp. Laws, § 3450) provides that “interest shall be allowed * # * on all moneys after they become due on any bond, bill, promissory note, other instrument in writing. ” It is insisted that the contract beween plaintiff and defendant is not an “.instrument in writing” contemplated by statute. It was held, under a similar statute, that a written contract for the construction of a building was an “instrument in writing,” and that interest should be allowed from the time payments became due. Downey v. O’Donnell, 92 Ill. 559. A plain reading of the words of the statute leads to no other construction.

The evidence shows that estimates of the work done in each month were made by the engineers, and certified and their correctness has never been called in question by defendants, and there is evidence that they knew of them at the time. They certainly might have known, and the law in this case must presume that they knew of them until the contrary appears. They made payments, from time to time, based upon them, and Underwood had contracted to furnish them to defendants.

The only other question in the case is as to whether there was an accord and satisfaction of the indebtedness. On this point there is a flat conflict in the evidence between plaintiff and one of the witnesses; but, as the jury found for plaintiff, we must assume the facts to be as plaintiff testifies. It appears that on April 7, 1884, one of the defendants deposited $12,-815.65 in a bank, to be placed to the credit of plaintiff. Plaintiff was absent at the time, and knew nothing of it. On that date one of the defendants wrote Simms: “I have this day deposited to your credit $12,815.65, being full amount due for work, .etc. Please send receipt in full.” It does not appear that Simms received this letter before he received that sum. As a postscript to the letter directing the bank to credit Simms, defendants wrote: “Don’t place this to credit unless he sends receipt in full.” Bank did place the amount to Simms’ credit. When Simms returned, he asked the bank for a statement of the account, and saw bis credit. The cashier then told him defendants required a receipt in full. This he declined to give, saying they owed him more, which he insisted upon. He then drew out his balance. We do not think this to be a satisfaction of the debt. The bank, for the purposes of this transaction, was the agent of defendants and we must treat what occurred as though Simms had been dealing with them. The money had already gone to his credit, and they asked for a receipt in full, which he refused to give, saying they owed him more. Then he was permitted to draw out the money. Simms expressly refused to satisfy the debt, and we do not think his drawing out the money under the circumstances a release.

This disposes of all the questions in the case of sufficient importance to require our attention.

The judgment is affirmed.