Opinion
12-15-1885
FELL v. M'MANNUS and others.
Mr. Buchanan, Mr. Rdstab, and R. S. Woodruff, for defendants.
Howell Bros, and James S. Aitkin, for complainant.
Mr. Buchanan, Mr. Rdstab, and R. S. Woodruff, for defendants.
BIRD, V. C. W. J. Morgan, one of the defendants, and Jane McMannus entered into a building contract, which was filed in the clerk's office according to the provision of the statute respecting mechanic's lien. One of the provisions of the contract was that Morgan should forfeit $10 for every day's delay in completing the building after a day named. Before the building was completed the period at which the forfeiture commenced was reached. Morgan was embarrassed, and unable to proceed. Two of his creditors who had furnished materials for or done work upon the building, demanded of Morgan the amount of their accounts, which he failed to pay. Of this failure they gave notice to Mrs. McMannus, and also that they would look to her for payment. After these notices, and on November 10, 1884, Morgan gave an order to the complainant upon Mrs. McMannus, in which he directed her to pay to the complainant $200, and to charge the same to his account for the erection of the house spoken of. On that same day Fell presented the order to Mrs. McMannus, who refused to accept the same. November 13, 1884, Morgan assigned all his right, title, and interest in the said contract, for the consideration of one dollar, to Samuel Heath, "together with all sums of money now due or to grow due thereon, or in any way issuing or to issue thereout." Mrs. McMannus consented, in writing, to this assignment by Morgan to Heath, expressly stating that she did so without waiving any of her rights or claims against Morgan. Upon a final settlement, the whole amount of forfeiture for delay in completing the contract was fixed at $372. The contract price was $1,225. At that same time the building was ready for plastering,—for the doors and windows; whether advanced beyond that or not is not certain. Morgan swears that at that time he had not received a dollar upon the contract. It appears that of the $372 forfeited as aforesaid for the delay, only $172was chargeable to Morgan. If this be so, and if it be true that Morgan had received no part of the consideration money, his interest in that contract must have been considerably more than enough to pay the amount of the claims which Morgan had previously refused to pay, of which Mrs. McMannus had notice. One of these claims was $80.38, and the other I understand to have been about $100, although the exact amount I have not before me.
The question is, who is entitled to the money in the hands of Mrs. McMannus on the fifteenth day of November, 1884, when Fell obtained the order from Morgan and presented it to Mrs. McMannus? In the first place, it was urged that Fell had failed to give such notice of the order to Mrs. McMannus as to fix any legal liability upon her. Let us examine this branch of the case. There is no doubt but that Fell took the order to Mrs. McMannus. He says that he showed it to her, told her what ft was, giving her the contents of it. She said to him that she could not read. He says that she also told him that there were less than $200 of claims presented to her ahead of his. He says, also, that he talked with her several minutes. She did not accept the order formally. He also says that he went immediately to the office of his counsel, had the order copied, and handed such copy to Mrs. McMannus. The material question is not whether she accepted the order, nor whether a copy of it was served upon her that day or not, but whether she had proper notice of its existence; for if she had such notice, as between her and Fell she was undoubtedly liable. Mrs. McMannus says: When Fell came "I opened the door. He came in, and asked me if I would sign this paper. I said, 'No; I knowed nothing at all about the paper.' I walked into the front door,—the middle of the room is right here, and I walked in and Mr. Fell walked in with me,—and he said: 'You won't sign it? 'and I said, 'No; I don't know anything about it;' and he said, 'Well, you can leave it;' and he put it in his pocket, and went out." She was asked whether he read the paper to her or not. Her answer was: "I could not say whether he did or not." She was also asked if he informed her of the contents of it, or explained it to her, and she said: "Not that I know of."
This testimony is sufficient, I think, to justify me in concluding that the complainant duly informed Mrs. McMannus that he had the order, and of its contents. While the testimony is not overwhelming, I think I would be doing great injustice to the complainant, and violating the long-established rules which govern courts in determining the right of the parties, if I should say that the complainant has not made out his case as between him and Mrs. McMannus. The preponderance of testimony, made up of direct affirmation and of many circumstances, is decidedly in favor of the complainant. He took the trouble to procure the order, to carry it to her, asking her to accept it, and, according to her own admissions, talking to her and she to him about it. She is unable to state whether he read it to her or not, and does not know whether he informed her of the contents or not. He swears that he did. Now, it seems to me that every court would say the weight of this testimony iswith the complainant. I do not forget that it is urged that Mrs. McMannus is an ignorant woman, and cannot read writing. In such case this is a weak defense, and unavailing, unless it appears that advantage was taken of such ignorance. She is a business woman. She deals with others as other business people deal with each other. She thereby engages with others in relations and responsibilities which she cannot discard at will. Those knowing about her enterprise and undertakings have a complete right to deal with her accordingly, and to hold her to the same liability in the law as the most learned, provided the transaction be fair and upright. So, in this case, if Fell told her that the paper which he exhibited was an order upon her by Morgan for the payment of $200 out of the moneys coming to him upon the contract, the law fixes the liability against her to pay that amount of money, if it is due or becomes due. If she was so illiterate that she could not read writing, then it were vain to give her a copy, or any other writing respecting it.
In the next place, it is claimed that Fell can take nothing by the order as against Heath, to whom the contract was assigned by Morgan, because Morgan had nothing due or owing to him under said contract. It is said that because he failed to perform the contract within the time stipulated, the number of days beyond that time for which he was to forfeit $10 for each day were as many as, at that rate, to more than absorb all that he otherwise had earned under the contract. This conclusion is reached by the counsel of Heath by simply premising that the contract is an entirety, and that nothing can be collected by Morgan nor by Fell upon his order, because Morgan did not complete his contract according to its terms. That the contract is an entirety may well be admitted; but if the principle involved had any application to this case, the acts of the parties have deprived it of all force. If an entirety, it has been entirely and specifically performed, and that according to its very terms and conditions. The principal term was that it was to be performed by the thirtieth of September; and one of the conditions was that if not performed by that time Morgan should forfeit $10 per day for each day's delay. That it has been performed is evidenced by the fact that Mrs. McMannus has accepted the house. It is true it was not completed by Morgan, but it was completed by his assignee, and the assignment of the contract to the assignee, Heath, who finished the house, was assented to by her. That assent was accompanied with the reservation of all her rights against Morgan.
There was a provision in the contract, as above intimated, that Morgan should forfeit $10 for every day's delay after the thirtieth of September in finishing the house. This was her protection. Because the house was not finished by the thirtieth of September she could not go on and finish it as she might have done under the contract, nor assent to another finishing it, then to accept the house, and to refuse to pay for what had been earned by Morgan. The contract meant no such thing as that. It only meant that she should be entitled to $10 a day for each day's delay after the thirtieth of September. And, to my mind, it is most manifest that this is so, whether the contract be completed by Morgan or by hisassignee. The rights of the parties are not and cannot be changed by a simple assignment of the contract. Nor can I see that there was the slightest attempt to change those rights. Heath took the place of Morgan,—nothing more, nothing less,—to which Mrs. McMannus assented, and she assented to nothing less. And since this is so, Heath has no rights greater or less than Morgan would have had had he proceeded to complete the contract. These principles are all so elementary that I would not have repeated them had not counsel insisted most strenuously that upon a proper application of them the complainant's claim could be successfully resisted by Heath, which it seems to me does not follow in case there was enough due upon the contract at the time of the assignment to pay the complainant, and those who had prior lawful rights to the same fund.
Then it remains for me to determine how much was due upon the contract at the time of the assignment. Although perhaps this cannot be definitely ascertained, for the purposes of this case I think it can with sufficient certainty. We will be aided in this inquiry by ascertaining the amount acknowledged to be due when the building was completed. As before observed, the contract price was $1,225. From this is to be deducted the amount of the forfeiture. It is claimed that the number of days the building remained incomplete after September 30th was 58; but, whatever the actual number, the parties settled for the sum of $372 as the proper amount to be charged for the delay. This left $853 due upon the contract, and I understood one of the witnesses to say $900 was the amount allowed. Of this $853 it is claimed that Heath is entitled to $740.61 for moneys paid by him under the contract. I am well satisfied that he paid the money, but I am equally well satisfied that a large portion of the money so paid was for debts or liabilities not incurred by him after the assignment, and therefore cannot stand ahead of the order. Samuel Heath, claiming that all this amount is due to him, puts the burden on him of showing that the moneys so paid were paid for materials furnished or labor performed after the assignment to him. He has not only not established that point, but I think the testimony submitted makes the contrary quite clear. Of this amount so paid by him, $549 were paid to the workmen employed on the building, being nearly one-half of the contract price for the building completed; $260 were paid to the workmen November 17th, only four days after the assignment to Heath; $80 upon the 22d; $100 upon the 29th; $34.50, December 6th; $55, December 13th. Now, when it is considered that the building is so far advanced as to be ready for the plaster and for doors and windows, and when it is further considered that Morgan said he had not received a dollar upon the contract, in which I believe he is not contradicted, it is quite plain that large portions of this money were in payment for work done before the assignment to Heath, and consequently were not carried by force of that assignment to Heath as against the order previously made the complainant. These same observations may be applied with equal force to other payments. Heath stands in no better position than Fell. Both are assignees.
I think it is my duty to advise a decree in favor of the complainant. He is entitled to the amount due upon his order, including interest and the costs of this suit.