SULLIVAN, C. J.
(After Stating the Facts.) — The appellant specifies numerous errors, and among them the insufficiency of the evidence to justify the findings and decisions of the court. Upon a careful examination of the evidence, we are unable to find any substantial conflict therein.
The main contention is over the proper construction of that clause of said contract of settlement which requires Bradbury to proceed, according to his best judgment and discretion, to secure, by action, lien, compromise or otherwise, the best settlement obtainable for said demand for compensation for said work, labor and materials, according to a just estimate therefor, and in excess of the said estimate of the engineer of the company, and said contractor shall pay each of the subcontractors, upon demand, his just part and portion, according to the work, labor and materials done and furnished by him, and according to the prices stipulated in his contract, of all compensation, money or property recovered or received for said work, labor and materials in excess of said estimates of the engineer of the company, and interest thereon. The respondent contends that said clause of the contract of settlement required Bradbury to proceed and secure the balance claimed to be due from the canal company, according to his best judgment and discretion, and that he did do so; that he recovered judgment for the sum of $170,000, and that the said company’s canal system was sold at sheriff’s sale, and the said system bid in by said Bradbury, for the full amount of said judgment and costs; that over $59,000 of that sum the appellant, Bradbury, is required to account for to the subcontractors, and pay, over to them, under that clause of the contract of settlement which provides as follows: “And said contractor shall pay each of the subcontractors, upon demand, his just part and proportion, according to the work, labor and materials done and furnished by him, and according to the prices stipulated in his contract, of all compensation, money or property recovered or received for said work, [768] labor and materials in excess of said estimates of tbe engineer of tbe company, and interest thereon." It was expressly agreed between Bradbury, as contractor, and the respondent, Thompson, and bis assignors, except Joseph & McDonald, as subcontractors, that Bradbury should proceed to foreclose the mechanic’s lien he had filed against the property of said canal company, and that, if he realized therefrom any money or property in excess of the $110,965.05 and interest, the subcontractors should be entitled to their proportion of the excess. On that ]ioint the respondent testified in his own behalf as follows: “My understanding was that this amount [$110,965.05] has never been paid to Mr. Bradbury, but the subcontractors had been settled with for that amount. This property, or whatever Mr. Bradbury would get, would stand him in hand $110,965.05 of a sum which had been settled for with the subcontractors in cash or notes. We expressly agreed in the contract that there would be nothing coming to us unless he received either money or property in excess of $110,000. That was our understanding all the time this suit was going on."
Taking the testimony of the respondent above quoted as the correct construction of said last-quoted clause of the contract of settlement, the final question for decision is, Did Bradbury, under said judgment and sheriff’s sale, receive money or property in excess of $110,965.05 and interest? It is contended by respondent when the appellant obtained said judgment against the canal company for $170,000 it was a “recovery” within the meaning of the terms of the contract of settlement, and that it was immaterial whether he ever received the amount of said judgment in money or property or not; that when he obtained judgment his liability to pay the subcontractors was fixed. We do not think the terms of the contract or the evidence supports that contention. The appellant was entitled to recover $110,-965.05, and retain it on his own behalf, before becoming liable under said contract of settlement to the payment of any portion of the claims of the subcontractors. If he recovered, in money or property, anything in excess of $110,965.05, then he must account for and pay over to the subcontractors their pro rata share of such excess; otherwise not. While it is true Bradbury [769] bid in said canal system at tbe sheriffs sale for the full amount of said judgment, no presumption of fraud or bad faith arises from that fact. In this testimony he states his reasons for doing so. There is no allegation or proof of fraud or bad faith in the foreclosure of said lien, or in bidding said property in for the full amount of said judgment. The evidence on the part of the respondent virtually concedes that said canal system was not worth the sum due Bradbury, while the evidence on the part of the defendant, or appellant, shows clearly that said property was worth much less than $110,965.05, which sum was to be paid out of the first proceeds, property or money, recovered from said canal company. Tinder the terms of said contract, the subcontractors who signed it are not entitled to recover until Mr. Bradbury has received money or property in excess of $110,965.05. As the plaintiff (respondent) failed to show that Bradbury had received any money or property in excess of-the sum which Bradbury was to have before the plaintiff and his assignors were entitled to any sum whatever, he failed to establish a ease against Bradbury, and judgment should have been in favor of Bradbury.
Free access — add to your briefcase to read the full text and ask questions with AI
SULLIVAN, C. J.
(After Stating the Facts.) — The appellant specifies numerous errors, and among them the insufficiency of the evidence to justify the findings and decisions of the court. Upon a careful examination of the evidence, we are unable to find any substantial conflict therein.
The main contention is over the proper construction of that clause of said contract of settlement which requires Bradbury to proceed, according to his best judgment and discretion, to secure, by action, lien, compromise or otherwise, the best settlement obtainable for said demand for compensation for said work, labor and materials, according to a just estimate therefor, and in excess of the said estimate of the engineer of the company, and said contractor shall pay each of the subcontractors, upon demand, his just part and portion, according to the work, labor and materials done and furnished by him, and according to the prices stipulated in his contract, of all compensation, money or property recovered or received for said work, labor and materials in excess of said estimates of the engineer of the company, and interest thereon. The respondent contends that said clause of the contract of settlement required Bradbury to proceed and secure the balance claimed to be due from the canal company, according to his best judgment and discretion, and that he did do so; that he recovered judgment for the sum of $170,000, and that the said company’s canal system was sold at sheriff’s sale, and the said system bid in by said Bradbury, for the full amount of said judgment and costs; that over $59,000 of that sum the appellant, Bradbury, is required to account for to the subcontractors, and pay, over to them, under that clause of the contract of settlement which provides as follows: “And said contractor shall pay each of the subcontractors, upon demand, his just part and proportion, according to the work, labor and materials done and furnished by him, and according to the prices stipulated in his contract, of all compensation, money or property recovered or received for said work, [768] labor and materials in excess of said estimates of tbe engineer of tbe company, and interest thereon." It was expressly agreed between Bradbury, as contractor, and the respondent, Thompson, and bis assignors, except Joseph & McDonald, as subcontractors, that Bradbury should proceed to foreclose the mechanic’s lien he had filed against the property of said canal company, and that, if he realized therefrom any money or property in excess of the $110,965.05 and interest, the subcontractors should be entitled to their proportion of the excess. On that ]ioint the respondent testified in his own behalf as follows: “My understanding was that this amount [$110,965.05] has never been paid to Mr. Bradbury, but the subcontractors had been settled with for that amount. This property, or whatever Mr. Bradbury would get, would stand him in hand $110,965.05 of a sum which had been settled for with the subcontractors in cash or notes. We expressly agreed in the contract that there would be nothing coming to us unless he received either money or property in excess of $110,000. That was our understanding all the time this suit was going on."
Taking the testimony of the respondent above quoted as the correct construction of said last-quoted clause of the contract of settlement, the final question for decision is, Did Bradbury, under said judgment and sheriff’s sale, receive money or property in excess of $110,965.05 and interest? It is contended by respondent when the appellant obtained said judgment against the canal company for $170,000 it was a “recovery” within the meaning of the terms of the contract of settlement, and that it was immaterial whether he ever received the amount of said judgment in money or property or not; that when he obtained judgment his liability to pay the subcontractors was fixed. We do not think the terms of the contract or the evidence supports that contention. The appellant was entitled to recover $110,-965.05, and retain it on his own behalf, before becoming liable under said contract of settlement to the payment of any portion of the claims of the subcontractors. If he recovered, in money or property, anything in excess of $110,965.05, then he must account for and pay over to the subcontractors their pro rata share of such excess; otherwise not. While it is true Bradbury [769] bid in said canal system at tbe sheriffs sale for the full amount of said judgment, no presumption of fraud or bad faith arises from that fact. In this testimony he states his reasons for doing so. There is no allegation or proof of fraud or bad faith in the foreclosure of said lien, or in bidding said property in for the full amount of said judgment. The evidence on the part of the respondent virtually concedes that said canal system was not worth the sum due Bradbury, while the evidence on the part of the defendant, or appellant, shows clearly that said property was worth much less than $110,965.05, which sum was to be paid out of the first proceeds, property or money, recovered from said canal company. Tinder the terms of said contract, the subcontractors who signed it are not entitled to recover until Mr. Bradbury has received money or property in excess of $110,965.05. As the plaintiff (respondent) failed to show that Bradbury had received any money or property in excess of-the sum which Bradbury was to have before the plaintiff and his assignors were entitled to any sum whatever, he failed to establish a ease against Bradbury, and judgment should have been in favor of Bradbury.
As to the right of plaintiff to recover under the seventh cause of action, involving the assigned claim of Joseph & McDonald, it is alleged that Joseph & McDonald, as subcontractors under the defendant, did work, labor, and furnish material for defendant and at his request, the aggregate value of which was unknown to plaintiff, but that there remained due and owing the sum of $2,000, as plaintiff is informed and believes and alleges; that prior to the commencement of this action said claim was assigned to plaintiff; that no part of said claim had been paid; that, as plaintiff is unable to state the exact amount due, prays leave, when such information is obtained, to correct the allegation as to the amount claimed to be due, if it is found to be incorrect, and prays for judgment for $2,000 and costs. Defendant denied that he owed said Joseph & McDonald any ■sum or amount whatever greater than ten dollars and sixty-nine cents, which sum he had tendered to them prior to the commencement of this action, and which sum defendant paid into court for plaintiff. In the trial of the case, J. J. McDonald, [770] of said firm of Joseph & McDonald, testified on behalf of the plaintiff, and identified the written contract between Bradbury and Joseph & McDonald, under which the work was done, referred to in the seventh cause of action. Said contract was introduced in evidence by the plaintiff. It is the contract on which plaintiff relies to recover in this action. It is stipulated in said contract that payments shall be made on the estimates of the engineer of the Idaho Mining and Irrigation Company. Said witness testified that, according to the estimates of said engineer, there was due him an agreed balance of ten dollars and eighty-five cents; and that “the difference between the com-panjr’s estimates and our own estimates was $1,694.66,” and that he had not been paid any part of that sum. The plaintiff also introduced as a witness T. L. "Wagner, the engineer, who made the estimates for Joseph & McDonald; and he testified to the difference between his estimates and classifications and those of the engineer of the Idaho Mining and Irrigation Company, who was the engineer agreed upon to make the estimates and classifications upon which payments were to be made. There is no allegation of fraud or mistake in the estimates of the engineer upon which payments were to have been and were made. The rule is well settled that, where payments are to be made upon estimates of a certain engineer, his estimates will not be set aside, and another’s taken, except for fraud or mistake. There being no allegation of fraud or mistake, and no evidence thereof, except the estimates of an engineer called in by Joseph & McDonald, the plaintiff was not entitled to recover on said seventh cause of action. It was simply the estimate of an engineer employed by Joseph & McDonald against the estimates of the engineer agreed upon by the parties, and on whose estimates payments were to be made. Had the respondent alleged and proved fraud or mistake on the part of the engineer selected by the parties to make the estimates and classifications on which payments were to be made, he would have been entitled to recover, but, on the pleading and proofs that appear in the record, he is not entitled to recover. The judgment is reversed, and the cause remanded for further proceedings in accordance with the [771] views expressed in this opinion.’ Costs of this appeal are awarded to the appellant.
Huston and Quarles, JJ., concur.