BIPLEY ,. CITY OF IlUPERIOR,
aC t7. CITY OF SUPERIOR.
(Circuit Court, D. Nebraska. February 1, 1890.)
Defendant city, haviIlg voted bonds for the erection of water-works, contracted for the WithF. & Co. Plaintiffs furnished the pipes for the works, and an agreement was made betweer. plaintiffs, defendant, and the contractors by which plaintiffs were to be paid for the material furnished 800n after the works were comIlleted. Upon the completion of the works, the oontractors drew an order on the, city in faof plaintiffs for the amount due. which order was dulY,accepted by defendant. Held, that the order and acceptance constituted a direct agreement between plaintift's and defendant, and was not an assignment of the contraotors' claim, within the ,nleaning of Act Congo Aug. 18, 1888. providing that an assignee cannot bring suit " in the circmit court unless the assignor might have done 80 had no assignment beeD 'niade.
Curtis « Keysor, RoweU « Ferris, and John A. GilJiam, for plaintiffs. Woolworth « Ragan, for defendant.
DUNDYj J. The city of Superior, the defendant, voted bonds under the laws;of tbesta,te, for the purpose of erecting water-works for the use of the city, and the inhabitants thereof. A contract WllS made between the city find S. K. & Co. to build the works. Ripley & Brannon, the plaintiffs, furnished the principal part of the piping with which the contractor completed the work. An agreement was made between the contractors, Felton & Co., and the plaintiffl:l and defendant, by which plaintiffs were to be paid for the material furnished, soon after the completion of the work, as provided by the contract. The work was completed according to the contract, and the contractor, Felton, drew his order on the city, in favor of the plaintiffs, for the sum of 85,750. This done on the 24th day of December, 1888. On the same day the city accepted the order in a proper way, and Felton & Co. at the same of the acceptance, all of which was done in writing. It is admitted that the contract for the erection of the water-works was fully complied with by Felton & Co., but nevertheless the city declines to pay the plairitiffs the sum represented by the acceptance before described, or any part thereof, and this suit is brought to enforce the payment of the same. Demurrer to the petition was filed, fully argued at the bar and in briefs filed, with the understanding that the defendant would stand on its demurrer, and rely wholly on its defense as stated in the demurrer. The principal question relied on arises under Jurisdictional' Aqt Congo Aug. 13, 1888. The first section of that act defines the jurisdiction of the circuit court. It is provided therein that an assignee I}annot bring a suit in a circuit court, unless the assignor might have done so had no assignment been made. But it seems to me that that provision does not apply to this case. ' It may be that the giving of the written order by 'Felton & Co. for the $5,750 operated as an assignment of that part of their claim for work done. If there had been no other or further agreement between any the parties to the .transaction, then I think v.41F.no.3-8
the plaintiffs cou1<1 not have maintained an action on the order against the city unless the could'l;i.ave done so. But in this particular instance the city had accepted the order, and had specially with the plaintiffs to pay them the amount called for by the order, which was for the very materials they had put into the works for :was in was based on a good and sufficient consideration. 'Ris that agreement that the plainti.ffs seek to , is an luade directly:with the plaintiffs themselves. It is a valid and biuding agreement, and lean see no good reason why the, plaiptW'$(lannot enCore.n.t in this court. If the order had been drawn payable to a citizenof' this statel' and had been accepted by the city, then an assignee of accepted order could notmaintain ,a 8uit in this court to enforce its payment. But here the promise sought to be enforced was made direct to the plaintiffs, who are citizens of the state of Missouri. The construction I have given to the first: scction of the act ·to, it (seems i$the correct one, and must settle the right of the plaintiffs to recover. The other questions discussed relate mainly to the remedy and nature of proceedings against municipal cor· demuirerHs· overruled j and judgment is 1entered Tfor 'por.atiori.s. . plaintiffs for Judgment for $ ,· andaosts. /' , .:,
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"1 ; t ; , ' ,'. ,', . .(CircuitOoUlli, N. D.Geargf)a. February 1; 1890.)
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'" ,Where legal, 111ll1,lifJ, .rElOQrd i.s in the husband" the Ittterest of the WIfe wlil notptevhlI a mortgage made by the husband, in 'ebe '; ': , absence of notice to the mortgageev"': ' ,",:: ' " .
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an eXlilcution lias been against a tax collector and. tbe llu:l:EiUes on his boM, 'Sua an aftlaavit of illegliJity IDed by the tax collector under the stattitesof " Georgia,! ((Jl¥1e, S§ 025, 11666,) bas QIl.&I'Jj Mqepted by tbe levyil)g,Qflloer, a .ubsjlg\l,6nt . Bale of tl?-e propertf of the surety, before judgment On the illegality, ia invalid; and oonveys 'no tit'Ie; '" . . ' , "
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.,In Equity,: "Bill for .:,.: W. S. Pickerell, ;for complainapt." ' " iB. H. .
i, ,This is fn'rther: 'p,roceedings''Ilnder·an execution-issued :from, this udgment"against on the; forecllilsureof..amPlltgage, properly t II under/sections 19ViO,and1971 of the COdl;l of Georgia, llnq.,treated as The bill fa by the: wUeof S. Whel,. "Chel, the defendlliot in sbe the, land levied'on', andll1ssertiog is, nQtsubject:to the; execu.tion. ' Shebuaes thililclaim