McCubbin v. City of Atchison

12 Kan. 166

Opinion

The opinion of the court was delivered by

Brewer, J.:

On the 9th of January 1872 the city of Atchison made a contract with D. C. O’Keefe to grade Spring street, between Seventh and Tenth streets. O’Keefe sublet the contract to one Montgomery. After the latter had done a small portion of the work he threw up his contract. O’Keefe then turned the work over to the plaintiff, who completed the grading, arid presented bis bill against the city for tbe entire amount done under the contract. The work was completed on or before the 29th of July 1872, and the bill therefor presented on that day. On the 1st of June, 1872, O’Keefe executed this instrument:

“Atchison, Kas., June 1st, 1872. For value received I hereby sell and assign to E. S. McCubbin, of the money coming to me on my contract with the city of Atchison for grading Spring street in said city of Atchison, the sum of $450, more or less, as soon as said work shall be completed according to said contract with said city; and I hereby authorize the proper city authorities to pay such sum to said McCubbin. D. C. O’Keeee.”

In February 1872, and before any work had been done, O’Keefe had given two orders on the city on account of this contract, (one for the sum of $125, and the other for $18.25.) These orders were accepted by no one, but simply filed with . the clerk or treasurer. In August 1872, and after the work had been completed, certain garnishee proceedings * were commenced by creditors of O’Keefe, and in them the city ordered to pay the amount due under this contract to such creditors. Thereafter the plaintiff brought his action in the district court against the city for the full amount due under the contract. The court instructed the jury'that plaintiff was entitled to recover for this sum, less the amount of the two orders given by O’Keefe. The jury brought in a verdict for the full amount. The court then offered to enter judgment on the verdict, providing the amount of these two orders was remitted by plaintiff. The plaintiff declined to remit, and the verdict was thereupon, on motion of the city, set aside. The plaintiff brings the case here and asks that the district court be directed to enter judgment on the verdict, as returned by the jury.

By offering the plaintiff judgment, providing he would remit the amount of these orders, the court in effect overruled all other grounds for a new trial. Should these orders have been deducted from the amount of the verdict? O’Keefe testified that when he turned the contract over to plaintiff, and signed the instrument hereinbefore set forth, it was with the agreement that the two orders should be first paid, and that the balance only should go to plaintiff. This plaintiff denied, and testified that he knew nothing about these orders, and that he was to finish the work and receive the entire pay. The work having been done in pursuance of the contract, to the acceptance of the officials designated in the contract, the city was bound to pay some one the contract-price. There is

The judgment of the district court is affirmed.

All the Justices concurring.