Moore v. Vickers

• Decision Date: 25 September 1893
• Citation: Moore v. Vickers, 34 P. 257, 3 Colo.App. 443 (Colo. App. 1893)
• Parties: MOORE v. VICKERS.
• Court: Colorado Court of Appeals

34 P. 257

3 Colo.App. 443

MOORE v. VICKERS.

Court of Appeals of Colorado

September 25, 1893

Appeal from Arapahoe county court.

Action by James W. Vickers, for the use of George F. Dunklee against T.F. Moore. Judgment for plaintiff. Defendant appeals.

H.M. Jacoway, for appellant.

George F. Dunklee and O.E. Jackson, for appellee.

BISSELL P.J.

Early in 1891, Moore and Vickers, as contractor and subcontractor entered into an agreement respecting some grading for the Denver & Suburban Railway Company. Shortly afterwards, by reason of some undisclosed transactions between one Myers and Vickers, Vickers assigned to Myers all moneys due and to become due under the contract which he had made with Moore and authorized Myers to collect it. It appears that Vickers did a good deal of work under the contract, whereby a considerable sum became due him. In October, Myers attempted to collect from Moore all or a portion of what Vickers had earned, presenting the authority expressed in the assignment therefor. At this time Moore appears to have raised some question concerning the amount due, but offered to pay Myers $150 if he would sign a receipt which on its face was expressed to be in full of all moneys due Vickers under the original subcontract. Myers accepted the proposition, signed the receipt, and took his money. Whether, under the arrangement between Myers and Vickers, he was entitled to collect the whole sum due, or whether the amount which he received wholly, substantially, or partially settled his claim, is not made evident by the record. Whatever the fact may be in respect of this matter, the receipt cannot be taken either as conclusive in favor of Moore, or as binding upon Vickers as to the amount that was due him under the contract. It has been somewhat seriously argued that this receipt should control the rights of the parties, and should bar a recovery in this suit which was brought by Vickers for the use of Dunklee, a subsequent assignee, to recover the balance said to be due for the work done under the original convention. There are many reasons to the contrary. In the first place, Myers was not empowered by the terms of the assignment to settle or adjust any controversy between Vickers, his assignor, and Moore, the contractor. His sole authority was to collect and receive whatever might be due from the contractor to Vickers for the work done. Manifestly, this would give him no right to collect a less sum than that which had been earned, and bind Vickers thereby, unless the release, if any, was made on his own behalf, and for moneys which he had a right to collect beyond those which he received. What these facts may be are not disclosed, so that it cannot be adjudged that he was possessed of authority to bind Vickers by the settlement. An additional and very cogent reason to reject this contention concerning the effect of the receipt is found in the circumstances under which it was executed. Myers seems to have suggested that Vickers claimed more money than that sum and that he was doubtful as to his right or his power to discharge the liability of the contractor by the execution of a receipt for a sum less than that which Vickers claimed. His objections were overcome by the statement of the contractor that the receipt would cut no figure, and that, if Vickers had any claim for money and could show it, he would get it in a minute. This conversation and these circumstances effectually dispose of the claim that the receipt was in any manner a conclusive and binding...