The opinion of the court was delivered by
Isham, J.
The plaintiffs, having recovered a judgment against the principal debtor, are also entitled to a judgment against the trustees, if at any time after the service of the trustee process, and before disclosure, any goods or effects of the principal debtor have come into their hands or possession. In other words, if) during that period, there was any indebtedness from Huntoon & Dow to the defendant Merrow, which he could have enforced against them, that indebtedness has been secured to these plaintiffs, by the attachment and service of this process; and to the amount of that indebtedness, and their claim against the principal debtor, the plaintiffs are entitled to recover judgment.
In the investigation of the question whether such indebtedness exists, the case presents two subjects for examination. In the first place, does such indebtedness arise from the monthly estimates, and payments which were to be made by Huntoon & Dow to Merrow? and in the second place, is there such an indebtedness arising [193] from the contract for the payment of five and seven cents per yard for earth and loose rock excavation, which Huntoon & Dow were to pay Merrow, in addition to the estimate of the engineer? It is insisted, that there is such an indebtedness arising from each of those sources. In relation to the first matter, it appears from the disclosure, that after the service of this process, on the 19th of March, 1849, and before the assignment of the claim by Merrow to Jones & Dow, on the 6th of September, of the same year, the work done by Merrow under that contract with Huntoon & Dow amounted to between 12 and 1500 dollars, exclusive of the additional claim for earth and rock excavation. For this, the trustees, Huntoon & Dow, are indebted to Merrow, and the claim is held by this attachment, unless other facts appear, absolving them from that liability. The liability of Huntoon & Dow on this matter is, however, denied; and it is insisted, that Merrow has no claim therefor, from the consideration, that • the whole amount has been paid by Huntoon & Dow to the operatives on the road, underjthe special direction of the engineer; and that such payment was necessary, to retain the men in their employment, and to ensure the future progress of the work. Whether such payment is a discharge of Huntoon & Dow’s liability to Merrow, or not, is the question arising on this part of the case.
If this question had arisen on the contract between the Railroad company and Huntoon & Dow, we think it quite obvious, that such payment by the company to the laborers on the road, would not only be a discharge of their liability to Huntoon & Dow, but the money retained for that purpose under the provisions of their contract, would not be subject to be attached .under a process of this character, as a debt due to Huntoon & Dow. By that contract with the company, Huntoon-& Dow were to construct sections six and seven of the Rutland division of the road, and by an express provision of that contract, “ the corporation were authorized to “ retain in their hands for the payment of the workmen, such an “ amount of the monthly estimates, as the engineer may deem “proper for that purpose, and the engineer is authorized to adopt “ such measures for the disbursement of the money as he may con- “ sider judicious.” Under this provision, the parties would be bound by any act of the engineer, in retaining and disbursing the money in payment of the laborers on the road; and Huntoon & [194] Dow could enforce no claims against the company on their contract, except for the balance due, after sufficient had been retained by the engineer for the above purpose. The money so retained would not be the property of Huntoon & Dow, nor be subject to be taken for their debts, as it would be in the hands of the company, or of the engineer, as trustee for the laborers.
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The opinion of the court was delivered by
Isham, J.
The plaintiffs, having recovered a judgment against the principal debtor, are also entitled to a judgment against the trustees, if at any time after the service of the trustee process, and before disclosure, any goods or effects of the principal debtor have come into their hands or possession. In other words, if) during that period, there was any indebtedness from Huntoon & Dow to the defendant Merrow, which he could have enforced against them, that indebtedness has been secured to these plaintiffs, by the attachment and service of this process; and to the amount of that indebtedness, and their claim against the principal debtor, the plaintiffs are entitled to recover judgment.
In the investigation of the question whether such indebtedness exists, the case presents two subjects for examination. In the first place, does such indebtedness arise from the monthly estimates, and payments which were to be made by Huntoon & Dow to Merrow? and in the second place, is there such an indebtedness arising [193] from the contract for the payment of five and seven cents per yard for earth and loose rock excavation, which Huntoon & Dow were to pay Merrow, in addition to the estimate of the engineer? It is insisted, that there is such an indebtedness arising from each of those sources. In relation to the first matter, it appears from the disclosure, that after the service of this process, on the 19th of March, 1849, and before the assignment of the claim by Merrow to Jones & Dow, on the 6th of September, of the same year, the work done by Merrow under that contract with Huntoon & Dow amounted to between 12 and 1500 dollars, exclusive of the additional claim for earth and rock excavation. For this, the trustees, Huntoon & Dow, are indebted to Merrow, and the claim is held by this attachment, unless other facts appear, absolving them from that liability. The liability of Huntoon & Dow on this matter is, however, denied; and it is insisted, that Merrow has no claim therefor, from the consideration, that • the whole amount has been paid by Huntoon & Dow to the operatives on the road, underjthe special direction of the engineer; and that such payment was necessary, to retain the men in their employment, and to ensure the future progress of the work. Whether such payment is a discharge of Huntoon & Dow’s liability to Merrow, or not, is the question arising on this part of the case.
If this question had arisen on the contract between the Railroad company and Huntoon & Dow, we think it quite obvious, that such payment by the company to the laborers on the road, would not only be a discharge of their liability to Huntoon & Dow, but the money retained for that purpose under the provisions of their contract, would not be subject to be attached .under a process of this character, as a debt due to Huntoon & Dow. By that contract with the company, Huntoon-& Dow were to construct sections six and seven of the Rutland division of the road, and by an express provision of that contract, “ the corporation were authorized to “ retain in their hands for the payment of the workmen, such an “ amount of the monthly estimates, as the engineer may deem “proper for that purpose, and the engineer is authorized to adopt “ such measures for the disbursement of the money as he may con- “ sider judicious.” Under this provision, the parties would be bound by any act of the engineer, in retaining and disbursing the money in payment of the laborers on the road; and Huntoon & [194] Dow could enforce no claims against the company on their contract, except for the balance due, after sufficient had been retained by the engineer for the above purpose. The money so retained would not be the property of Huntoon & Dow, nor be subject to be taken for their debts, as it would be in the hands of the company, or of the engineer, as trustee for the laborers.
The question in this case, however, does not arise on this contract, except so far as it is made, by express reference thereto, a part of the contract between Merrow and Huntoon & Dow. In relation to the contract with Merrow, we find that it was executed on the 20th of January, 1849, “by which Huntoon & Dow sub- “ let to Merrow the south end of section six of this road, and Mer“row agreed to complete the same according to the terms and “ specifications in the contract of Huntoon & Dow with the Rail- “ road company, and to be under the same liabilities, obligations “ and restrictions in every particular in regard to said work, that “ Huntoon & Dow were under by them contract with the company;” to which contract reference is,made, to ascertain the nature and extent of those liabilities, obligations, and restrictions.— This contract should be construed and enforced so as to carry into effect the evident intention of the parties. "When the expression is used, that Merrow is to be under the same liabilities, obligations and restrictions in every particular, in relation to the work upon the road, that rested upon Huntoon & Dow, they manifestly referred to the contract, as an entire contract, regulating not only the manner in which the work was to be performed, but the manner in which payment therefor was to be made; so that whatever liabilities and restrictions rested upon Huntoon & Dow on their contract, were assumed by Merrow in his contract with them. Merrow, in relation to that part of the road, was to occupy the same position they occupied, or stand in them shoes, having the same rights against Huntoon & Dow, which Huntoon & Dow had against the company, and subject to the same liabilities to them, which they were under, except so far as express provisions were made in their contract to the contrary. And as the company had the right, as against Huntoon & Dow, to retain the amount due the laborers, and pay the same to them, the same right existed in favor of Huntoon & Dow against Merrow, otherwise he would not be under the same liabilities and restrictions they were under. Thus, when the [195] money is retained under the express directions of the engineer, it is no more liable to be taken as the property of Merrow under this contract, than it was liable to be taken as the property of Huntoon & Dow on their contract with the company. If Merrow had brought an action against Huntoon & Dow on his contract, for his compensation for labor, Huntoon & Dow would have the right, by an express provision in their contract, to deduct from the amount, the sum due for goods, &c., taken by the workmen, boarding-house keepers, &c., of Jones & Dow, as also all shanty rent, and Merrow could only make a claim for the balance. We can hardly conceive, that Huntoon & Dow would be careful to secure to themselves those claims, by deducting the amount from the monthly estimates, and leave unprovided for that much larger amount, that was to go to the laborers on the road; or obligate themselves to pay to Merrow the whole amount due the laborers, without obtaining that security for the payment of those claims to the operatives, which they had given to the company. Obviously, in such an action by Merrow, after the engineer had given directions to retain the money for payment to the laborers, he could recover of Huntoon & Dow only the balance that should be found due after those claims had been satisfied; and as this was the extent of the claim of Merrow against Huntoon & Dow, no greater right could be secured in favor of these plaintiffs by the attachment and service of this process. By the service of this writ, they are subrogated only to the rights of Merrow; and as he had no claim to the money thus reserved, which he could recover or enforce, it was not a matter that could be taken by these creditors under this process. The legal right to the money was in the company, to be disbursed by the engineer in payment of the claims of the laborers on the road; and as it appears from! the facts in this case, that this money was re-' tained and paid to the laborers, under the express direction of the engineer, and that nothing was due Merrow, after those claims were paid, we think the trustees are not chargeable for any sum arising out of that matter; that the payments were good, as against any claim of Merrow; and though they were made after the serving of this process, yet they are good also against these plaintiffs, as Merrow never had any claim for that money, which he could enforce, until after those claims of the laborers had been satisfied.
In relation to the claim of five .and. seven cents per yard for [196] .earth, and loose rock excavation, it is to be observed, that this process was served on the trustees on the 19th of March, 1849, and that this claim was assigned to Jones & Dow on the 6th of September, of the same year. If there was an indebtedness, therefore, from Huntoon & Dow to Merrow on that matter, Jones & Dow took the same, subject to the prior right of these plaintiffs under their attachment. The case shows that these additional prices would amount to over 1000 dollars, if Merrow had fully performed his contract. It is insisted that Huntoon & Dow are not indebted to Merrow on that matter, as the contract was never performed by him according to its provisions; and that if there is a claim, it'is of that contingent character, that it is not subject to this process. It appears from the case, that a portion of that excavation of earth and rock was made by Merrow under his contract; and though his work was not entirely finished by him, or by any one under him, nor within the time specified in the contract, yet, • for the labor actually bestowed in the performance of that contract, and of which Huntoon & Dow have availed themselves, in showing a performance of their contract with the company, they should be responsible to Merrow, at least for what the labor was •actually worth to them. It appears also, from the disclosure, that about 90 dollars has been deducted by the engineer from the claim of Huntoon & Dow, for this non-performance of that contract, and that- the same amount has been deducted by Huntoon & Dow, and is retained by them. By this, it would seém that the damages for the non-performance of the contract have been adjusted, not only with Huntoon & Dow, but with the company, so that no further complaint can be made on that ground. However that may be, we think Merrow-is entitled to a reasonable compensation at least, for the labor actually performed under that contract, the benefits of which Huntoon & Dow have received.
The contract by Huntoon & Dow was absolute, to pay a-given sum for certain work; and-though in the peíformánce of that work; all the provisions of their special contract may not have been eomplied-with, and some-uncertainty may exist as to the amount due Merrow thereon, yet the claim is not of that contingent character, that exempts it from'the operation of -the trustee act. Whatever, therefore, the labor of Merrow was worth, in.,making that earth and rock excavation, -and which was expended upon the road be[197] fore the assignment to Jones & Dow, is a claim due to him from Huntoon & Dow, and which can be held by these plaintiffs under the service of this process, as being prior in time to that assignment. For this matter we think they should have been held chargeable as trustees. The judgment of the County Court, therefore, discharging the trustees, must be reversed; and the defendants, as trustees, held chargeable for the amount - for which they were .indebted on this matter at any time before disclosure and before the assignment to Jones & Dow.