OPINION
WILLIAMS, C.
This
case comes to this court from the circuit court of Grundy
county.
Defendant
and interpleader, R. R. Calkins, appeals from a judgment
allowing respondents, codefendants, various amounts of
interpleas filed herein.
The
facts about which the controversy arose are; that the Honey
Creek Drainage District on November 18, 1921, entered into a
contract with one G. E. Sampson, for the construction of a
drainage ditch in Grundy county, Missouri.
The Iowa Bonding & Casualty Company, executed the contract in
conjunction with the defendant, G. E. Sampson, guaranteeing
the performance thereof.
The
Southern Surety Company took over the business and assets of
the Iowa Bonding & Casualty Company prior to the institution
of the suit. The remaining defendants are creditors of the
defendant, G. E. Sampson.
The
defendant and appellant, R. R. Calkins, loaned G. E. Sampson
certain funds and took his note. This note was reduced to
judgment in October, 1924.
The
material parts of the contract as gathered from the abstract
of the record furnished by the appellant and the additional
abstract of the record furnished by respondent are as
follows:
"Paying Laborers. The contractors further agree that
they will pay for the work and labor of all laborers,
teamsters, teams and wagons employed on the work, and for all
machinery, tools, and material used thereon. Such payment to
be a condition precedent to the right of said contractor to
demand final payment on completion of contract.
"Monthly
and Final Payment for Work Done. Once each month the engineer
shall examine the work and if found complete according to the
plans, specifications, contract and instructions, he shall
issue an estimate for the work so completed showing the
amount due since the last proceeding estimate, and shall
certify the same to the board of supervisors, who shall pay
eighty-five per cent of said monthly estimate until the
amount retained is equal to $ 5000 on Honey Creek Main Ditch,
and the remaining $ 5000 shall be paid as follows: $ 5000 on
final completion and acceptance of Honey Creek Main Ditch.
Guarantee
of Third Party. The third party to this contract hereby
guarantees that the contractor will faithfully perform all
the covenants and agreements hereinbefore mentioned; that
said contractor will pay all bills for machinery, materials,
tools, labor and appliances and further that they will hold
and save harmless said drainage district from any damages or
actions against it by reason of the neglect or failure of
said contractor to perform all the acts herein required.
"Payment
for work done under this contract will be made each month in
monthly payments on estimates furnished by the engineer.
Fifteen per cent of estimates to be retained up to $ 5000
until final completion and acceptance of work.
"The
contractor shall save the district, its officers and agents
harmless . . . from all suits and claims for labor done or
material furnished in the performance of the work under these
specifications.
"The
contractors further agree that they will pay for the work and
labor of all laborers, teamsters, teams and wagons employed
on the work, and for all machinery, tools,
and material used thereon. Such payment to be a condition
precedent to the right of said contractor to demand final
payment on completion of the contract.
"Before
final payment shall be required to be made by the drainage
district under this contract the contractors shall
acknowledge and deliver under their hands and seals, a
release and discharge of and from any and all claims and
demands for, and in respect of all matters and things growing
out of or connected with this contract or the subject-matter
thereof, and from all claims and demands whatsoever.
"Before
final payment shall be required to be made by the drainage
district under this contract, the contractors shall
acknowledge and deliver, under their hands and seals, an
affidavit that they have paid for all labor, material and
supplies used or contracted for on the work.
"The
prices herein named are to cover all expenses of every kind
involved in, or incidental to the completion of the contract,
including all claims that may arise from any cause in the
performance of the work hereunder.
"The
third party to this contract hereby guarantees that the
contractor will faithfully perform all the covenants and
agreements hereinbefore mentioned; that said contractor will
pay all bills for machinery, materials, tools, labor and
appliances and further that they will hold and save harmless
said drainage district from any damages or actions against it
by reason of the neglect or failure of said contractors to
perform all the acts herein required."
At the
trial an agreement was entered into as follows:
"It
is stipulated and agreed by and between interpleaders herein
that the claim of A. D. Barton was reduced to judgment in the
circuit court of Grundy county, Missouri, and amounts to the
sum of $ 579.03; said judgment was founded on a debt due and
owing by G. E. Sampson to the said A. D. Barton, on account
of funds advanced by the said Barton to the said G. E
Sampson for the purpose of paying labor, also money paid at
the request of the said G. E. Sampson to laborers engaged in
said project, in the construction of the Honey Creek Ditch,
and that thereafter by oral assignment of the said G. E.
Sampson, and that if the said G. E. Sampson were present in
court would testify that he did by oral assignment assign a
sufficient part of the funds due and owing by the Honey Creek
Drainage District to the said A. D. Barton for the purpose of
paying the amount due the said A. D. Barton, and that the
said G. E. Sampson would further testify he told the said R.
R. Calkins prior to the execution of the assignments from
Sampson to Calkins of the partial assignment to the said
claimant Barton; and that the said C. E. Sampson if present
would further testify that at the time of making said
assignment or assignments in evidence that
he told R. R. Calkins that the A. D. Barton claim must first
be paid out of said funds, and that the said Sampson would
further testify that R. R. Calkins agreed at that time that
all assignments were taken subject to the A. D. Barton claim,
and that the said G. E. Sampson would testify, if present,
that the consideration for all of said assignments are for
the money due, after the payment of said Barton claim.
"It
is agreed that the amount of the claim of the defendant
Standard Oil Company is correct in the amount of $ 423.72
that the items of said claim were oil, gas and lubricating
oils used by the defendant, Sampson on his machinery in...
