Sehlin v. State , 256 Wis. 495 ( 1950 )

Broadfoot, J.

(dissenting). A. A. Prendergast, P. A. Prendergast, A. A. Sehlin, and R. G. McGrail were the copartners doing business as A. A. Prendergast & Associates. They also owned practically all of the stock of Industrial Contracting Company. Work under the contract was completed in October, 1942. A. A. Prendergast died in 1943, thereby terminating the partnership. The plaintiffs acquired the interests of A. A. Prendergast and R. G. McGrail in the partnership and also in the corporation which was liquidated and dissolved. McGrail died later and the plaintiffs are the surviving partners of A. A. Prendergast & Associates.

The paragraph with reference to the assignments quoted in the decision was made a part of the contract by reference. The purpose of the paragraph is obvious. It was to prevent partial assignments of the amount due under the contract. It would be inconvenient and costly if the state had to deal separately with various subcontractors, the suppliers of cement, steel, and other materials required in the construction of the bridge, and with laborers. After the work has been completed and accepted the reason for the paragraph disappears and the state is only required to make one final settlement with the two survivors of the four original contractors. To say that the plaintiffs cannot now recover if they have a just claim because the claim filed with the legislature stated that they were assignees is highly technical. Although actual assignments were made to the plaintiffs by R. G. McGrail while living and by the personal representative of A. A. Prendergast after his death and by the corporation in anticipation of its dissolution, the plaintiffs as surviving partners would have received the same assignments by operation of law following the deaths of A. A. Prendergast and R. G. McGrail. The state admits that had the claims come to plaintiffs by operation of law the quoted provision of the contract would not be applicable. This is hairsplitting raised to a high degree. They were assignees when the claim was filed whether by actual assignment or by operation of law.

It is my opinion further that said provision is not applicable in this case because it prohibits assignments or orders “executed by the contractor.” There has been no assignment, partial or otherwise, by the contractor to other persons. The claimants are the sole survivors of the contractors. They are the only persons who could file the claim.

The state is raising an unconscionable defense. It should be required to try the case on the merits.