51 P. 758 | Idaho | 1898
(After Stating the Facts.) — The appellant specifies numerous errors, and among them the insufficiency of the evidence to justify the findings and decisions of the court. Upon a careful examination of the evidence, we are unable to find any substantial conflict therein.
The main contention is over the proper construction of that clause of said contract of settlement which requires Bradbury to proceed, according to his best judgment and discretion, to secure, by action, lien, compromise or otherwise, the best settlement obtainable for said demand for compensation for said work, labor and materials, according to a just estimate therefor, and in excess of the said estimate of the engineer of the company, and said contractor shall pay each of the subcontractors, upon demand, his just part and portion, according to the work, labor and materials done and furnished by him, and according to the prices stipulated in his contract, of all compensation, money or property recovered or received for said work, labor and materials in excess of said estimates of the engineer of the company, and interest thereon. The respondent contends that said clause of the contract of settlement required Bradbury to proceed and secure the balance claimed to be due from the canal company, according to his best judgment and discretion, and that he did do so; that he recovered judgment for the sum of $170,000, and that the said company’s canal system was sold at sheriff’s sale, and the said system bid in by said Bradbury, for the full amount of said judgment and costs; that over $59,000 of that sum the appellant, Bradbury, is required to account for to the subcontractors, and pay, over to them, under that clause of the contract of settlement which provides as follows: “And said contractor shall pay each of the subcontractors, upon demand, his just part and proportion, according to the work, labor and materials done and furnished by him, and according to the prices stipulated in his contract, of all compensation, money or property recovered or received for said work,
Taking the testimony of the respondent above quoted as the correct construction of said last-quoted clause of the contract of settlement, the final question for decision is, Did Bradbury, under said judgment and sheriff’s sale, receive money or property in excess of $110,965.05 and interest? It is contended by respondent when the appellant obtained said judgment against the canal company for $170,000 it was a “recovery” within the meaning of the terms of the contract of settlement, and that it was immaterial whether he ever received the amount of said judgment in money or property or not; that when he obtained judgment his liability to pay the subcontractors was fixed. We do not think the terms of the contract or the evidence supports that contention. The appellant was entitled to recover $110,-965.05, and retain it on his own behalf, before becoming liable under said contract of settlement to the payment of any portion of the claims of the subcontractors. If he recovered, in money or property, anything in excess of $110,965.05, then he must account for and pay over to the subcontractors their pro rata share of such excess; otherwise not. While it is true Bradbury
As to the right of plaintiff to recover under the seventh cause of action, involving the assigned claim of Joseph & McDonald, it is alleged that Joseph & McDonald, as subcontractors under the defendant, did work, labor, and furnish material for defendant and at his request, the aggregate value of which was unknown to plaintiff, but that there remained due and owing the sum of $2,000, as plaintiff is informed and believes and alleges; that prior to the commencement of this action said claim was assigned to plaintiff; that no part of said claim had been paid; that, as plaintiff is unable to state the exact amount due, prays leave, when such information is obtained, to correct the allegation as to the amount claimed to be due, if it is found to be incorrect, and prays for judgment for $2,000 and costs. Defendant denied that he owed said Joseph & McDonald any ■sum or amount whatever greater than ten dollars and sixty-nine cents, which sum he had tendered to them prior to the commencement of this action, and which sum defendant paid into court for plaintiff. In the trial of the case, J. J. McDonald,