Snow v. Board of Commissioners, 112 N.C. 335

Snow v. Board of Commissioners

112 N.C. 335 | N.C. | 1893

Burwell, J.:

We find no error in the judgment from which the defendants have appealed.

By the terms of the contract between the plaintiffs Ellington, Royster & Co. and the defendant Board of Commissioners the latter were bound to pay to said plaintiffs the price agreed upon for the building of the court-house. So far as appears they have never waived their rights to any part of this sum, nor consented that the Commissioners should pay to any other person what was due to them upon the completion of the work they had agreed to do. A portion of their -work was the “plumbing and piping,” which was done by J. C. Brewster, not for defendants or on their credit, but for Ellington, Royster & Co., and on their credit. The defendants have never owed Brewster any money for that work. The relation of debtor and creditor has not existed between them. But that relation did exist between Brewster and Ellington, Royster & Co. by virtue of the subcontract made by them for the “plumbing and piping” with Goodwin & Co., and by them assigned to Snow, and by him assigned to Brewster. It was entirely competent for Ellington, Royster & Co., the debtor, and Brewster, the creditor, to agree that Snow should receive a certain part of the money to become due from them to Brewster. No third party had acquired any lien on the fund. And no one now can complain because Ellington, Royster & Co. agreed to pay to Snow a certain portion of the money to become due to Brewrster, the amount so to be paid being evidenced by a note given by Brewster to Snow, or because Brewster agreed to accept the difference between the contract price of the “plumbing and piping” and the sum so *342to be paid Snow in full satisfaction of liis demand against Ellington, Royster & Co. The effect of the arrangement between those parties was as if Brewster had drawn a draft on Ellington, Royster & Co. in favor of Snow for the sum mentioned in the note, to be paid out of the contract price, and Ellington, Royster & Co. had accepted the draft.

If the agreement between Snow and Brewster as to the manner of the payment of the note, to-wit, out of the fund to be in the hands of Ellington, Royster & Co., had not been assented to by them, it would have been in effect as if a draft had been drawn as above stated and Ellington, Roy-ster & Go. had not accepted it, and there might have been presented to our consideration the question whether or not the agreement between Brewster and Snow amounted to an assignment by the former to the latter of the sum named in the note out of the total sum in the hands of Ellington, Royster & Co. But we have here no controversy between the holders of the fund, Ellington, Royster & Co., and the claimant to a part of it, Snow. They admit their agreement with Snow and their liability thereon and only insist that their debtors, the defendants, shall pay what is due them under the original contract so as to enable them to carry out their agreement with Brewster and Snow. To this recovery Robertson & Co. have no right to object. They are creditors of Brewster and of Brewster alone, and by no action of theirs or of Brewster’s can they recover of his debtor more than is due to him under the agreement in force when their claim against him for materials originated, and that, as we have seen, was the difference between the contract price of the plumbing and piping and the sum which Ellington, Royster & Co. had agreed to pay to Snow for Brewster, and that sum they have received and may retain without objection on the part of the plaintiffs.

*343Nor can the defendants defeat the recovery of plaintiffs by showing that they have paid the sum sued for to Robertson & Co. in order to discharge their alleged lien, for, in the first place, a court-house cannot be made subject to any lien for labor or materials, and, in the second place, if it be conceded that the lienors acquired thereby a lien on the money due from, defendants to Ellington, Royster & Co., or on the money due from Ellington, Royster & Co. to Brewster, still the limit of their lien was the net amount due Brewster after deducting what they had assumed to pay to Snow. No Error.