Williams v. Androscoggin & Kennebec Rail Road , 36 Me. 201 ( 1853 )

Rice, J. —

The defendants were summoned as trustees of Porter & Benson, in an action which was entered at the April term of the late District Court, Kennebec county, 1849, and disclosed, and upon that disclosure were charged.

In that action judgment was obtained against the principal defendants and it is admitted] that all the proceedings, required by the statute, were had, to fix the liability of the trustees.

The indebtedness of the trustees to the principal defendants in the original action was incurred under a contract for executing the grading and masonry on three sections of the Androscoggin and Kennebec Railroad.

That contract contains a provision that “ between the first and tenth day of each month, after the commencement of the work, the engineer (employed by the company) shall estimate the quantity of work done, and shall give a certificate of the same; and upon the presentation of said certificate to the treasurer of said company, three fourths of the amount then due for work specified in said certificate, shall be paid to the party of the first part, as aforesaid; provided, however, that no estimate shall be made, or certificate given within one month after the commencement of the work: and provided, also, that no certificate for a less sum than five hundred dollars shall be given, except at the discretion of the engineer, and when the whole work hereby contracted for shall have been accepted agreeably to contract, the balance shall be paid to the said party of the first part.”

It was manifestly the intention of the parties, that monthly estimates should be made of the work performed and payment made for three-fourths the amount thereof, on presentation of the engineer’s certificate. The amount thus found, was due absolutely, and depended upon no contingency. There was nothing due and payable until the expiration of each month, and whether the one-fourth, which was reserved, should ever become payable, depended upon the contingency of the contract being fully performed, for it was stipulated, that if the parties of the first part should not well and truly perform all their covenants, “ any balance for work done on said road, which would have been due to said party of the first part, shall be forfeited and become the right and property of the company.”

The rights of the parties depend upon the condition of things as they existed at the time of the service of the original writ on the trustees, and could not be modified, or changed by subsequent transactions. The fact that the contract was finally completed cannot therefore change the result.

According to the disclosure of the trustees the amount due for work performed in November was two hundred dollars. One hundred and fifty dollars, being three-foartha of that sum was due absolutely, for which the defendants are chargeable.

Neal being the first attaching creditor after this became due and payable, is entitled to hold that amount, his judgment exceeding one hundred and fifty dollars.

In December, the whole amount of work performed, was $1602,42, of which three fourths, or $1201,81 ¿ was due absolutely after the expiration of that month, and for which defendants are also chargeable.

This latter fund must be appropriated to satisfy the judgments of the several parties. according to priority of attachment, whose attachments on their original writs were made after the work for December became due and payable. Parties whose attachments were made in December will not be entitled to hold any-portion of this fund, such attachments having been made prematurely.

The defendants are liable to pay interest on the- amount in their hands for which they are.charged, from and after the day on which demand of payment was made upon them.

When the defendants were summoned as trustees by the plaintiff in the original action they had no goods, effects or credits of the principal defendants in their hands or possession, which could be reached by process of foreign attachment.

According to agreement a nonsuit must he entered.

Shepley, C. J., and Hathaway, J., concurred.