Bridge v. First Nat. Bank of Darlington

• Decision Date: 25 April 1899
• Citation: 103 Wis. 117,79 N.W. 47
• Parties: CLINTON BRIDGE & IRON WORKS v. FIRST NAT. BANK OF DARLINGTON.
• Court: Wisconsin Supreme Court

103 Wis. 117

79 N.W. 47

CLINTON BRIDGE & IRON WORKS

v.FIRST NAT. BANK OF DARLINGTON.

Supreme Court of Wisconsin.

April 25, 1899.

Appeal from circuit court, Lafayette county; George Clementson, Judge.

Action by the Clinton Bridge & Iron Works against the town of Benton. The First National Bank of Darlington was interpleaded; and from a judgment in its favor, and a judgment against plaintiff for accrued interest on the amount paid into court by the defendant town, plaintiff appeals. Modified and affirmed.

In April, 1895, plaintiff was a manufacturer of iron bridges. One H. W. Curry applied to it for an arrangement to act for or with it in contracting for and putting up bridges in certain counties in this state, and an interview was had, at which an agreement was reached and put in the form of a letter to Curry, substantially as follows: “That we will get you up papers for you to bid on bridges in Lafayette county, Green county, and Iowa county, Wis., and furnish you with estimates of costs and prices you can take the work at, for us to furnish the iron, and you do the erecting and furnish other material, you to do your own advertising, and furnish us with data on any bridges you want to bid on in the above-named counties, and we will get up papers accordingly, and furnish the iron and assist you in erecting, if necessary. Contracts to be taken in our name and not at a less price than a fair percentage of profit added to the estimated cost. We will furnish iron at a cost made before you bid on the work, and, at the time we furnish you with plans, etc., to bid on, according to data furnished by you. * * * We will divide the profits equally with you, after all items of cost have been charged to the different contracts you may take, and vouchers furnished us showing that all bills in connection with the same have been paid. All contracts to be made payable to the Clinton Bridge & Iron Works, or our order. Trusting you may be successful in getting a goodly amount of work, with a nice profit in it for us both. When any work comes up let us know, we will get papers ready for you, by you sending us the required information; that is, the size and kind of bridges wanted, kind of foundation, height of substructure, and length of spans, width of roadway, capacity required, etc., kind of lumber and cost of same at bridge site, distance from railroad station, and your estimated cost of erection. The cost of iron will vary according to the size and kind of work; but we will make it at cost in all cases, and shall demand the same from you on what labor and materials you furnish. Contracts must be sent to us, as soon as made, for our acceptance.” Curry immediately went to work, in pursuance of this letter, and in the course of the season contracted for and erected several bridges, of which two in the town of Benton, at the price of $1,100, were the last, and were completed in October of that year. About August of the same year, bridges for the town of Shullsburg, erected under this arrangement, had been completed, and in September payment was made therefor in two orders,--one of $2,100, and another of $300, payable, upon their face, to Curry. The $300 order was retained and cashed by him, and the $2,100 order was indorsed and sent to the plaintiff, all without any objection or protest on its part. It does not appear exactly what proportion the cost of the material furnished by the plaintiff bore to the material furnished and labor hired by Curry in these bridges, except that in the two in Benton Curry's cost was about $300; which must have been approximately one-third of their entire cost. After the bridges for the town of Benton were completed, to wit, on November 1st, the plaintiff wrote to the town chairman requesting that, upon completion and acceptance of the bridges, a town order should be made out for $953, in favor of the Clinton Bridge & Iron Works, payable to their order and expressed to them, and gave verbal direction to the same effect, all without the knowledge or approval of Curry. On November 4th, the town of Benton issued a town order for $953, payable to the plaintiff or order, and delivered it to H. W. Curry, who on November 22d discounted the same with the defendant, the First National Bank of Darlington, indorsing the same, “Clinton Bridge & Iron Company, H. W. Curry, Agent.” Before purchasing the order, the cashier of the defendant inquired of Curry as to his authority to indorse the order and transfer the debt, and was informed by Curry that he was a partner with the plaintiff in the construction of these bridges by virtue of a written contract embodied in a letter, and, as such, had authority to collect and discount this order, and that he needed the money for the uses of the business in which he and the plaintiff were partners. He had not the letter with him, but the cashier of the bank, being acquainted with him, accepted the order upon his statement; he promising to exhibit such contract of partnership, and a few days thereafter he did bring the letter quoted above, and delivered it to the cashier. At that time no accounting had been had between him and the bridge company, and he claimed, and still claims, that, after receiving the $953,...