Campbell & Cameron Co. v. Estate of Carnagie , 98 Wis. 99 ( 1897 )

PiNNBY, J.

There was a clause in .the contract to the effect that the balance of the contract price 'should be paid “as soon as the board of control are satisfied that said-work has been completed, and are assured against the existence of any mechanics’ liens on said building.” This clause was inserted, not for the benefit of the material men or mechanics, but solely to protect'the state against any possible expense or charge on account of liens that might possibly be filed against the building. It was not inserted to give such parties any interest in or control over the fund. It is well understood that no such liens could be allowed or enforced. No agreement is shown that material men or mechanics should have any interest in the unpaid balance, or any right to control or direct its payment; nor has there been shown any assignment, either legal or equitable, or any order, oral or written, by Carnagie, for the payment of any part of that fund to- the plaintiff or any other person. In a general sense, the money appropriated for erecting the building was held in trust for that purpose, and could not be diverted by the board of control to any other purpose; but the fund was in no proper sense a trust fund for the petitioner, so that it might intervene and ask a court of equity to apply any part of it to the payment of the balance due the petitioner from Carnagie or his personal representative. The agreement between Carnagie and the board of control, referred to, does not inure to the benefit of the petitioner, either legally or equitably; nor was it a party or privy to that contract; nor was it designed to bind or benefit it by its provisions. It is impossible to sa'y that the balance due Carnagie was in any sense a trust fund for the payment of the balance due from him to the petitioner, or was intended as such. Upon Cafnagie’s death it passed to his personal representative, to be disposed of in due course of administration, and payment could not lawfully bb made by the board of control to any one else upon any alleged parol promise made, by Carnagie in his lifetime. The petitioner’s case wholly fails. It has failed to show that the money due to Carnagie, and paid over to his personal representative, was in any sense whatever a trust fund as to it or for its benefit.

It asked certain findings of fact,— in substance, that, a short time before his death, Carnagie examined the account of the petitioner, and agreed that the balance due it was $447.21, and he would pay the same from the balance due him from the board of control when the board of control paid him the balance due on' his contract, but that he was taken fatally ill and died, before he was able to carry out said agreement. This finding was properly refused. It could not have been of the slightest avail to the petitioner.

Por the reason stated, the judgment of the circuit court was correct.

By the Court.— The judgment of the circuit court is affirmed.