McHose v. Dutton

• Decision Date: 21 April 1881
• Citation: 8 N.W. 667,55 Iowa 728
• Parties: MCHOSE v. DUTTON
• Court: Iowa Supreme Court

8 N.W. 667

55 Iowa 728

MCHOSE v. DUTTON

Supreme Court of Iowa, Des Moines

April 21, 1881

Appeal from Story District Court.

IT appears from the averments of the petition that one Randall contracted to furnish the materials and erect a court house for Story county. The plaintiff entered into a written contract with Randall to furnish the brick for said building and after furnishing the same there was a balance due to the plaintiff amounting to $ 350. Plaintiff commenced an action against Randall, and on the 3d of April, 1877, he recovered judgment for the amount due. Execution was issued on said judgment, but nothing was made, said Randall being insolvent. On the 5th day of October, 1876, Randall executed a written instrument of which the following is a copy.

"OMAHA Neb., Oct. 5th, 1876.

"To the County Auditor, Treas., Members Bd.:

"Pay to O. B. Dutton, Esq., all estimates which hereafter may be allowed me on my contract for erection of Story county court house, and I do hereby authorize said O. B. Dutton to receipt for any moneys due me on said contract. And I do also hereby authorize and instruct said O. B. Dutton to pay any claims which are now or may hereafter become due and payable on account of labor done or material furnished in the erection of said court house at Nevada, Iowa, and whatever amount may remain at the completion and acceptance of said court house said amount to be placed to the credit of the undersigned.

"Signed J. B. RANDALL."

It is further averred in the petition that under said written authority to receive estimates the said defendant received the sum of $ 18,000 from Story county, which sum the defendant still has, and that he refuses to pay the plaintiff the amount due him for the brick so furnished, although requested so to do.

Judgment is demanded against the defendant for the amount. The petition is entitled in equity, and there is a prayer for general relief. In an amendment to the petition, made after a demurrer thereto had been sustained, it is alleged that the plaintiff had no knowledge of the existence of said written instrument until after he had obtained judgment against Randall, and that the said sum of $ 18,000 was and is more than sufficient to pay all the creditors who were intended to be paid by said written instrument.

The defendant renewed his demurrer to the petition as amended. The demurrer was sustained. The plaintiff excepted and appeals.

AFFIRMED.

J. B. McHose, J. L. Dana, and John H. Drabelle, for appellant.

Henderson & Carney and J. S. Frazier, for appellee.

OPINION

ROTHROCK, J.

I.

If the averments of the plaintiff's petition to the effect that the defendant at the commencement of the suit had $ 18,000 of the court house fund in his hands are true, it is difficult to understand why he did not garnish the defendant when he issued execution on the judgment against Randall.

The question to be determined here, and upon which plaintiff's right to maintain an action depends, is, did the written instrument executed by Randall operate as an assignment to Dutton of the amount of money due on the contract, for the benefit of all who might have claims for labor and material furnished in the erection of the court house? If it was such an assignment, and Dutton accepted it he was bound to discharge the trust thus reposed in him, and use the funds in his hands in payment of the beneficiaries. It is well settled that a third party may maintain an action on a promise made to another for his benefit. Counsel for appellant have cited a large number of authorities in...