Farmers’ State Bank of Riverton v. Riverton Const. Co.
| Decision Date | 12 March 1929 |
| Docket Number | 1423 |
| Citation | 275 P. 128,39 Wyo. 238 |
| Parties | FARMERS’ STATE BANK OF RIVERTON v. RIVERTON CONST. CO. et al. (BROTHERS, Intervener). |
| Court | Wyoming Supreme Court |
Appeal from District Court, Fremont County; Volney J. Tidball Judge.
On petition for rehearing. Petition denied.
For former opinion, see 270 P. 1082.
O. N Gibson and A. C. Allen, both of Riverton, for plaintiff and respondent.
F Chatterton, Kinkead & Ellery, and H. Donzelmann, all of Cheyenne, for defendants, defendant and appellant, and intervening defendant and appellant.
Before BLUME, C. J., RINER, J., and METZ, District Judge.
Counsel, in the petition for rehearing, allege that our former opinion in this case is in irreconcilable conflict with a number of decisions of this court, and cite Edwards v. Willson, 30 Wyo. 275, 219 P. 233; Conway v. Smith Mercantile Co., 6 Wyo. 468, 46 P. 1084; Patterson v. Hardware Co., 7 Wyo. 401, 52 P. 1085; Columbia Copper Mining Co. v. Duchess Mining Co., 13 Wyo. 244, 79 P. 385; Phelan v. Cheyenne Brick Co., 26 Wyo. 495, 188 P. 354, 189 P. 1103; Lellman v. Mills, 15 Wyo. 152, 87 P. 985; and Farmers’ State Bank v. Northern Trust Co. (Wyo.) 270 P. 163.
All of the above decisions hold, directly or in effect, that a judgment of the lower court will not be disturbed if there is sufficient evidence to sustain the same. We agree with these former decisions, but do not agree with counsel in his contention that there is sufficient evidence to sustain that portion of the judgment that we modified in the former decision.
We gave this case our undivided attention for a considerable length of time, and carefully read the entire voluminous record and extensive briefs and over 250 pages of pleadings, and again we have gone over this same ground, and feel now, as then, on the questions involved in this litigation.
We devoted considerable space to discussing the evidence in our former opinion; in fact, we went into considerable detail, and we shall not incumber this opinion with another discourse on that subject.
Counsel for plaintiff further contend that the decision in this case is in irreconcilable conflict with the following federal decisions: Spofford v. Kirk, 97 U.S. 484, 24 L.Ed. 1032; National Bank of Commerce v. Downie, 218 U.S. 345, 31 S.Ct. 89, 54 L.Ed. 1065, 20 Ann. Cas. 1116; Id. (C. C. A.) 161 F. 839; In re Rudford Co. (C. C. A.) 257 F. 722; London & Lancashire Indemnity Co. v. Endres (C. C. A.) 290 F. 98; Hall v. Chandler (C. C. A.) 289 F. 675; Lindberg v. Humphrey, 53 App. D.C. 243, 280 F. 901; In re Waters-Colver Co. (D. C.) 206 F. 845; McGowan v. Parish, 237 U.S. 285, 35 S.Ct. 543, 59 L.Ed. 955.
Counsel for the plaintiff further contends that the Petry contracts and agreements affecting the funds derived from the bridge contract with the government are absolutely void under the above authorities.
The above authorities construe section 3477 of the Revised Statutes of the United States (31 USCA § 203), and are not in point under the facts and pleadings in this case. An examination of the authorities above cited by counsel and the authorities hereinafter cited will disclose that most of these authorities and decisions can be classified in one of three groups:
(1) Cases where an assignee of a claim has brought suit against the government to recover on his assignment. United States v. Gillis, 95 U.S. 407-417, 24 L.Ed. 503; St. Paul & Duluth R. R. Co. v. United States, 112 U.S. 733, 5 S.Ct. 366, 28 L.Ed. 861; Hager v. Swayne, 149 U.S. 242, 13 S.Ct. 841, 37 L.Ed. 719.
(2) Cases where there has been an assignment by the operation of law, such as assignments in bankruptcy and claims passing to heirs and devisees of deceased, etc. Erwin v. United States, 97 U.S. 392, 24 L.Ed. 1065; Seaboard Air Line Ry. v. United States, 256 U.S. 655, 41 S.Ct. 611, 65 L.Ed. 1149; Hobbs, Assignee, v. McLean, 117 U.S. 567, 6 S.Ct. 870, 29 L.Ed. 940; Goodman v. Niblack, 102 U.S. 556, 26 L.Ed. 229; Butler v. Goreley, 146 U.S. 303, 13 S.Ct. 84, 36 L.Ed. 981; Price v. Forrest, 173 U.S. 410, 19 S.Ct. 434, 43 L.Ed. 749; National Bank of Commerce v. Downie, 218 U.S. 345, 31 S.Ct. 89, 54 L.Ed. 1065, 20 Ann. Cas. 1116.
(3) A miscellaneous group of authorities where the facts are such that they cannot be classified in either of the two before-mentioned major groups. Bailey v. United States, 109 U.S. 432, 3 S.Ct. 272, 27 L.Ed. 988; Spofford v. Kirk, 97 U.S. 484, 24 L.Ed. 1032; Nutt v. Knut, 200 U.S. 13, 26 S.Ct. 216, 50 L.Ed. 348.
The case at bar is quite peculiar in some respects. A significant fact in this case is the total lack of an attempt by any one to avoid or qualify the Buffalo fork bridge contract of employment between the construction company and Petry. The parties, by their pleadings in the lower court, all allege that it was simply an employment contract. There is no claim by any one that it was an assignment, and the construction company and Chatterton were the most emphatic in their pleadings on that score.
The contract between Petry and the construction company for employment on the Buffalo fork bridge provides in part as follows: "That for and in consideration of the premises, and the payment of the sum of $1,000, to be made in the manner hereinafter provided for, first party is employed and does hereby employ second party to do and perform all of the work and labor and to furnish and supply all of the materials and other things required for the said construction hereinabove more specifically mentioned," etc. It is expressly provided in the contract that the construction company shall collect and receive the moneys from the government.
The pleadings of plaintiff bank and defendant construction company show, all the way through the record, that the main dispute throughout the trial was over an alleged open running account claimed by the construction company against Petry.
The construction company, in effect, ratified the bridge contract with Petry at numerous times, and as late as February 23, 1923, nearly two years after the last money was paid to the construction company by the government on the bridge contract, the construction company set up in its pleadings and alleges affirmatively:
That Petry was employed personally, to do and perform all the work and labor and to furnish and supply all of the materials and other things to be done in the construction of the bridge over the Buffalo fork, etc. That such employment was a personal employment of the said N. G. Petry, which could not lawfully be by him assigned or delegated to another, etc. That the so-called contract referred to (being the construction company-Petry bridge contract) shows upon its face that it is simply a memorandum of a personal employment of the said N. G. Petry, etc. That article 13 of said agreement between said Riverton Construction Company and the said United States of America, for the construction of said bridge, provided that, "neither this contract nor any interest therein, shall be transferred or assigned by the contractor to any other person or persons; any such transfer or assignment shall cause the annulment of the contract so far as the United States is concerned"-all of which was well known to said N. G. Petry at the time of his said employment; and said defendants further allege that his said employment did not in any manner constitute him an assignee of said contract or of any interest therein or to receive the consideration for the construction of said bridge from the United States of America. That said defendants allege that during the time of the construction...
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