Citation Numbers: 28 How. Pr. 142
Judges: Ingalls
Filed Date: 9/15/1864
Status: Precedential
Modified Date: 1/12/2023
By the court, I think this cause was properly disposed of by the county court, upon the ground assumed by that court. Mrs. Yates contracted solely with the contractor Smith, and by the terms of that contract she was to pay when called upon as the work progressed, and did pay from time to time to Smith, or upon his order, and on the llth of December, 1862, upon the assumption that the work ivas completed, paid $390, which was claimed by Smith, and supposed by Mrs. Yates to be the balance due upon the contract, and took a receipt in full. No work was done to the house after that payment save the delivery of two pairs of blinds, which occurred on the 13th of February, 1863. It can hardly be successfully contended that the mere delay of the blinds for a period of about two months, prevented the parties (Yates and Smith) from considering the contract completed. At all events, Mrs, Yates acted upon the assumption that the work was done, and paid her money accordingly, and in the absence of fraud or collusion on her part was entitled to protection, unless Thompson by his vigilance had acquired a valid lien upon the property prior to such payment. She paid pursuant to her contract, and to the only person with whom she had contracted. There was no privity of contract between Thompson and herself. She had never agreed to pay him a dollar, and he could only reach the money in her hands by force of a lien legally created previous to payment by her. It is the misfortune of Thompson that he proceeded with the work without taking the precaution to make Mrs. Yates by agreement liable to him, instead of depending upon Smith for compensation. It is the province of the