Nash & Phelps v. Chicago, Milwaukee & St. Paul R'y Co.

62 Iowa 49

• Court: Supreme Court of Iowa
• Decided: October 18, 1883
• Status: Published

Opinion

Beck, J.

I. The petition alleges that certain laborers performed work in constructing the railroad, under-contract with one Byan, for which no payment has been made; that claims for a lien were duly filed, and notice thereof served upon the railroad company, and that the claims have all been assigned to plaintiffs. Judgment is prayed against Langdon, Bishop & Co., contractors, and a lien is claimed against the railroad. An amended petition shows that the contractors became bound to pay the claims by reason of promises and representations made by them, and under provisions of their contract with the railroad company. The answer, admitting the services rendered by plaintiff’s assignees, and that Lang-don, Bishop & Oo. were contractors, and Ryan was a subcontractor, denies other allegations of the petition. In the view we take of the case, a more particular statement of the pleadings is unnecessary.

II. Tiie work was done by plaintiff’s assignors in July and August, 1881; the notice required by the statute, (C.ode, & 2131-,') O V , 1. MECHANIC’S Mtag^woru unto'subcontractor. of the filing of the claim for the lien ° was §jven October, 31, 1881, and prior to the giving of the notice the sub-contractor, Ryan, had been paid in full, in accordance with the contract for the work, after its completion. No lien can, therefore, be enforced against the railroad for the claims of plaintiff’s assignors. Sandval v. Ford, 55 Iowa, 461; Robinson & Atherton v. The State Ins. Co., Id., 489.

III. We are required to determine whether plaintiffs are entitled to a judgment against Langdon, Bishop & Co. We 1. ASSIGN-road ume™11’ tractornot11" bound by. think they are not, for the reason that they fail " Proye that the claim was assigned and transferred to them. The assignment was made by the persons performing the labor executing a written instrument in the following language:

“For yalue received we hereby assign to Nash & Phelps our accounts against the Chicago,- Milwaukee & St. Paul R. R. Co., for work done on construction of a railroad bed for said railroad company, and all our right, title and interest in certain mechanic’s liens filed in the office of the clerk of district court of Marshall county, Iowa, by us, against said railroad company. Audubon, Iowa, Nov. 18, 1881.”

This instrument transfers an account against the railroad company, and a claim for mechanic’s lien. It transfers no claim against Langdon, Bishop & Co.

The sub-contractor gave to each of plaintiff’s assignees a memorandum in the following form:

“$60.66 TIME CHECK.

“Marion Extension, C. M. & St. P. R. R,

“To Langdon, Bishop <& Go., Contractors,

“Jake "Waltenberg has worked 211-2 days in tbemonth of July with team, at $3.50 per day - - $78.92

“ To account with Matt. Ryan.18.26

“Balance due _.$60.66

“ Matt. RyaN, Sub-Contractor.

“ Dated Aug. 11, 1881.”

These “time checks” were delivered to plaintiffs, the name of the respective payees being indorsed upon each. If it be conceded that this indorsement constituted an assignment, it transferred no claims against Langdon, Bishop & Co. The instrument is evidence of indebtedness of Ryan to the payee, or of the indebtedness of the railroad company to Langdon, Bishop & Go: It is not a claim, or evidence of a claim, against the parties last mentioned. Its assignment does not operate to transfer to plaintiffs a claim upon them. There is no other evidence of the transfer of these claims to plaintiffs relied upon except these instruments. We therefore conclude that plaintiffs failed to establish any interest in the claims sued upon. As we understand the record, the court below upon this ground dismissed plaintiffs’ petition. The decision was correct, and must be

Affirmed.