Sonnenthiel v. Skinner

Stayton, Associate Justice.

The instruments dated May 3 and 5, 1885, were not negotiable, and with the endorsements thereon but evidence the right of the appellant to maintain whatever claim Skinner might enforce against the city of Galveston for the installment falling due, under his contract with the city, on May 1, 1886.

As against the city of Galveston, the contract between it and Skinner was the sole foundation on which the latter, or any one claiming through him, could assert any right. Whether the facts existed which authorized Hall to take possession of the fire alarm system was passed on by the court below, and there is no assignment of error which calls for a revision of the finding on that point. The power conferred on Hall by Skinner, through the contract between them, and the power of attorney given by the latter to the former, was very broad, and from an examination of the record we see no reason to doubt that Hall had the right to assume control of the fire alarm system.

Hall seems to have been the owner of the subject matter of contract between the city of Galveston and Skinner, which, however, he subsequently agreed to sell to the latter on terms agreed upon. The city agreed to pay Skinner the sum of seven thousand five hundred dollars for >the system, as it was, and as Skinner contracted to make it, the same to be paid in five equal annual installments. It further agreed to pay to Skinner a like sum, in equal monthly installments, for his services and material and other things to be by him supplied and used in keeping the system in good order during a period of five years. The first annual payment was made to him, and all the monthly payments were made to him which became due before December 1, 1886.

Prior to that time, Hall took possession of the fire alarm system under the power given to him by Skinner, and under the contract between them, and from that time operated the system; and under this state of facts it is now contended that Skinner was entitled to receive such proportion of the second year’s annual payment as the time he operated the fire alarm system during that year bears to the second year, and that the appellant is entitled to this by reason of the assignment under which he claims.

If such was the right of Skinner, it would seem that such would be the equitable right of appellant; but we are of the opinion that, under the agreements between Hall and Sk'inner, the former became entitled to whatever rights the latter had under his contract with the city, in so far as settlement had not been made between the city and Skinner prior to the time Hall took possession.

There may have been equities between Hall and Skinner growing out of the contracts between them, of which, had they been properly asserted in this case, the appellant might have had the benefit. If so, such equities were not asserted in this case.

We find no error in the judgment, and it will be affirmed.

Affirmed.

Opinion delivered March 1, 1887.