State ex rel. Palmer v. Webster

50 P. 558, 20 Mont. 219, 1897 Mont. LEXIS 124

• Court: Montana Supreme Court
• Decided: October 18, 1897
• Status: Published

Opinion

Buck, J.

It is conceded by both counsel for appellant and respondent that the main question submitted to us for an answer is the following: “Was the fact that Yogel was indebted to third parties for materials used under the contract any defense on the part of the city to the application for mandamus?”

Appellant contends that the sixth estimate of work done by Vogel was not a final estimate. We think, however, that the jury properly found that it was. The city had a right to waive all requirements in the contract in its favor as to the imposition of penalties, and the evidence shows that by both. the contractor and the city the sixth estimate was regarded as a final one. Such being the case, we must answer the question aforesaid in the affirmative.

Vogel had not paid for materials, as he had agreed to do in his contract, at the time relator demanded a writ of mandamus to compel the City of Great Falls to turn over warrants to him in payment of the balance due Vogel according to said sixth estimate. The city had a right to withhold these warrants until it was satisfied that these material claims had been paid.

There are numerous other alleged errors, but, these being in matters immaterial to this decision, it is unnecessary for us to consider. The judgment is affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.