DocketNumber: No. 17,281
Citation Numbers: 94 Neb. 24
Judges: Barnes, Fawcett, Hamer, Letton
Filed Date: 6/16/1913
Status: Precedential
Modified Date: 7/20/2022
One Liberty, a building contractor, built a schoolhouse for the city of McCook under contract. Among those who furnished material for the building were the assignors of the plaintiff and defendant McCook Brick Company. At the time this action ivas begun there was $1,013.70 in the school district treasury to the credit of Liberty. The plaintiff claimed this amount by reason of an assignment dated October 23, 1907, made by Liberty, and of which notice was given to the school district next day. The defendant claimed $779 out of the fund by virtue of an assignment from Liberty alleged to have been made on July'30, 1907, and of which notice was immediately given to the school district. The right of the plaintiff to the fund is clear, unless there had been a prior assignment of the same to defendant. Prom a decree holding that de-. fendant had the prior right to the fund, plaintiff appeals.
Plaintiff’s first contention is that, since McAdams by returning the order to Liberty made him the agent of the brick company to deliver the same to the school board, if Liberty destroyed the order and did not present it, there was then no order in existence, and the brick company acquired no rights superior to those of a subsequent assignee. When Liberty signed and delivered the order to Mr. McAdams, he thereby conveyed all his interest in the fund to the brick company. It could not lose the right thereby acquired, unless by some subsequent act of omission or commission on its part. Even though the order itself were destroyed by Liberty and only a carbon copy of the same delivered to the school board without signature, the fact that the board had notice and knowledge of the existence of the assignment before it changed its position by paying out any money upon the order, and before being notified of the existence of another and subsequent assignment, rendered its liability complete, and the assignee might, under section 30 of the code, have maintained an action against it in its own name to recover the fund.
Plaintiff also contends there is no evidence that the assignment executed in July was brought to the notice of the school board. Mr. Barnes testifies that the entry in the record of its proceedings referred to the blank order which had been handed to him by Barnett; but the evidence is positive that, not only Barnes, but other members of the school board, knew that McAdams claimed to have an order signed by Liberty for this fund. Whether the paper which was left with the board was the signed order or merely a copy of it is not so very material when it is considered that there is nothing to contradict the testimony that the order was actually signed, and that the board had knowledge of the claimed assignment and retained the fund in its possession. -
The judgment of the district court is
Affirmed.