44 Cal. 294 | Cal. | 1872
This action was commenced in the year 1855, and the complaint contains three counts, all in the ordinary common law form; the first upon a quantum meruit for work done and materials furnished by the plaintiff in and about the grading, planking, and bridging of Powell street in said city. Second—The ordinary count for work and labor done and materials furnished, for which, it is alleged, the defendant promised to pay the sum of one hundred and twenty-five thousand dollars. Third—Upon an account stated. The answer contains: First—A general denial. Second—An allegation that the plaintiff’s cause of action, if any, “ arises from and is founded upon a certain written contract, or alleged contract, purporting to be made on or about the 20th
This action was twice brought into this Court on appeal; and the case is reported first in 7 Cal. 463, and afterwards in 28 id. 591. Ultimately Lucas, Turner & Co. recovered a final judgment against the city for about the sum of forty-seven thousand dollars; and the defendant insists that the assignment to them and the judgment recovered by them conclude the plaintiff, and bar any right of action he might otherwise have had. It is claimed, in support of this propo
If we accept this as the correct theory, it will aid us in interpreting the assignment to Lucas, Turner & Co. The paper purporting to be a written contract was executed on the twentieth September, and the assignment on the 10th December, 1853. Very little of the work probably was performed at the last named date, and we must interpret the assignment in the light of the surrounding facts, and give effect to it accordingly. Having borrowed from Lucas, Turner & Co. the sum of thirty-eight thousand dollars, the plaintiff’ proposed to secure the debt by assigning to them his contract with the city, which was probably then in pro
I am, therefore, of opinion that Lucas, Turner & Co. were entitled, as assignees, to sue for and recover the whole sum, if any, due to the plaintiff at the date of the assignment, or which might thereafter become due to him, for performing the work specified in the written contract. Being thus substituted to the plaintiff’s right of action for the whole sum, if any, which he was entitled to demand, the judgment which they recovered will have the same effect as an estoppel, as though it had been recovered by the plaintiff himself. The rule invoked by the plaintiff", that if a specific portion of a demand be assigned, this will not preclude the assignor from maintaining an action for the residue, has no application to this case, as we have just seen that the whole demand was assigned to Lucas, Turner & Co. iTor can the suggestion that by issuing its warrants for different sums, as
Judgment affirmed.
Mr. Justice Niles did not express an opinion.