32 Mont. 206 | Mont. | 1905
prepared the opinion for the court. Appeal from a judgment.
The suit was to recover a balance alleged to be due on a contract for repairing and altering St. Peter’s Hospital, in the city of Helena. The full contract price was $4,748, of which the defendant had paid the sum of $4,348, but refused to pay the balance of $400, because it claimed that plaintiff had failed to fully complete his contract.
Plaintiff alleges that he entered into a subcontract with one Burley R. Streets to do the painting according to the specifications, and under the directions and to the satisfaction of the architects, and “which painting was thereafter done and performed by said Streets”; that thereafter Streets commenced
Tbe appellant filed its answer, and denied tbat tbe judgment of Streets against tbe plaintiff was res adjudicata against it at all; and for further answer alleged, after setting forth a portion of tbe contract between it and plaintiff, tbat be failed to complete tbe painting specified in tbe contract and specifications, and tbat it bad demanded of him tbat be do sucb painting; tbat be bad refused, and tbat it bad caused tbe same to be completed at a cost of $305. Tbe answer further alleged tbat plaintiff bad entered into a subcontract with one Gust G. Minter for placing a roof on tbe building, at a price of $159.25, and tbat plaintiff failed to pay Minter any amount other than tbe sum of $110; tbat Minter filed a mechanic’s lien for tbe balance of $49.25, which tbe appellant paid in order to release tbe lien, and alleged tbat under tbe terms of tbe contract it was entitled to retain tbat amount out of any moneys due plaintiff on tbe contract. It was then alleged tbat there was only a balance of $44.75 due tbe plaintiff, which it was ready and willing to pay, and admitted that plaintiff was entitled to a judgment for tbat amount. In tbe replication a
The main question presented in the briefs of the respective counsel, and on their argument before this court, was as to the effect of the Streets judgment, counsel for appellant contending that said judgment was not res adjudicata against it for any purpose, and counsel for respondent contending that said judgment was res adjudícala as to the proposition that the contract between the appellant and respondent had been fully performed.
Counsel for respondent cite to the court and rely very strongly upon, the case of Hoppaugh v. McGrath, 53 N. J. L. 81, 21 Atl. 106, as being conclusive upon tbis proposition in tbeir favor. An examination of tbis decision leaves us of tbe opinion tbat it has no bearing upon tbe case at bar. In tbat case A, tbe owner of property, let a contract to B to erect certain buildings tbereon. B subcontracted witb 0 to do tbe masonry work. A sued B for breach of contract because of defective masonry work. B notified C of tbe pendency and object of tbis suit, and called on bim to come in and help defend it, wbicb C disregarded. A recovered a judgment. B then sued C for breach of contract because of defective masonry work,- and tbe court held tbat tbe judgment of A against B was conclusive against C. We are of tbe opinion tbat tbis decision is correct, on tbe principle tbat C, by failing to perform bis contract witb B, to B’s damage, and having notice of A’s suit, was liable therefor. A recovered a judgment against B for a breach of the contract between them. Tbis breach was caused by tbe act of C, and be was clearly
There is a vast difference between the Hoppaugh Case and the one under consideration, as is recognized in Taylor v. Wahl, supra. Here the appellant has done nothing by which the subcontractor was wronged or injured. No contract relation existed between them, either express or implied. By virtue of the contract between appellant and respondent, and the statutes of this state, Streets, the subcontractor, by a proper proceeding might have made appellant’s property liable for his claim against respondent, if it was not paid or liquidated, but under no circumstances could Streets make appellant personally liable to him for any amount. There was no liability over to respondent. Appellant could not have legally inter
> Suppose, by the contract between respondent and Streets, he was only to paint the outside of the building; suppose Streets performed such contract; his work would not include all the painting provided for by the contract between appellant and respondent. Could a judgment in Streets’ favor against respondent, upon the theory that he (Streets) had fully performed his contract, be binding upon appellant ? It could not have the effect of concluding appellant to the extent that respondent had fully performed his contract with appellant. If not, upon what theory could a judgment of Streets against respondent be binding upon appellant, if the contract between Streets and respondent was identical with the contract between appellant and respondent? Appellant would have no more to do with the contract between respondent and Streets in one instance than in the other. Appellant could not enforce any contract between respondent and Streets, and could have no action against Streets for a breach thereof. Streets’ breach of such contract could not relieve respondent from a judgment for damages in favor of appellant for a breach of his contract with it, even though such breach was occasioned by Streets. Appellant might sue respondent and recover from him damages for such breach. Respondent would be bound under his contract with appellant to fully perform its terms before he could maintain an action upon it.
In order to enable Streets to enforce a lien upon appellant’s property, he would be compelled to make respondent a party to that suit, and litigate with him the correctness of his account, if respondent disputed it. As well said by this court in the case of Missoula Merc. Co. v. O’Donnell, 24 Mont. 74, 60 Pac. 594, 597: “The O’Donnells were not made parties. Under the proof in the record, E. 0. O’Donnell contracted the debt
If appellant could not be made personally liable by a direct proceeding, such liability could not be imposed upon it by any collateral one. We are clearly of the opinion that the judgment of Streets against respondent was not res adjudícala against appellant in any respect, and was only evidence that respondent owed Streets that amount on their contract. In order for plaintiff to recover the balance due on his contract from appellant, he was bound to show full performance thereof. It seems to be conceded that the contract specified that he should
Respondent’s position in regard to the Minter labor and lien is that he let a subcontract to one Krigbaum for placing the roof on the building for the sum of $110; that the architects of the building told him that appellant wanted the -roof constructed by one Minter, of Great Palls, and directed respondent to cancel his contract with Krigbaum, and cause the roof to be constructed by Minter; that he canceled the Krigbaum contract, but entered into no contract with Minter, who constructed the roof; that he paid Minter the sum of $110, which he-agreed to pay Krigbaum for the same work; that at the time-the architects directed this change they informed him that if there was any extra charge by Minter the appellant would pay it. The only proof of the authority of the architects to make-such an arrangement, if one was made, is that one or two of' the trustees of appellant told them that the appellant would pay the difference.
It must be remembered that the appellant is a corporation,, and, before it could be bound by what one or two of its trustees, may have told the architects, the burden was upon the plaintiff to show that said.trustee or trustees had authority to so bind the corporation, or that the corporation ratified it. No evidence of this character was presented on the trial of the case.
The contract, as alleged in the answer, provides that appellant might protect itself against any lien which might be filed upon the building by withholding from respondent a sum sufficient to liquidate the same, and the answer alleges that Minter filed a lien for the sum of $49.25, which was discharged upon
We are of the opinion that the court below should have ordered a judgment for plaintiff in the sum of $44.75, and we advise that the judgment appealed from be reversed, and the district court be directed to enter a judgment for plaintiff in the sum of $44.75.
Per Curiam. — Por the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded to the district court with directions to enter a judgment for plaintiff, in the sum of $44.75.
Reversed and remanded..