McCarthy v. Kirksley

Riddick, J., (after stating the facts.) The question presented by this appeal is whether the circuit court erred in permitting E. R. Kirksley and other intervening petitioners to become parties to this action, and in rendering judgment in their favor against the defendants for the several amounts claimed by them. Our statute provides that “where, in an action for real or personal property, any person having an interest in the property applies to be made a party, the court may order it to be done.” Sand. & H. Dig., § 5636. But it is not shown that the intervening petitioners had any interest or lien upon the debt which the plaintiff Bean sought to recover in this case. It is true that they allege that they were employed by Bean, and assisted him to perform the contract he had made with the defendants. But they did not do this under any contract with the defendants. They were employed by and worked for Bean, but they had no contractual relations with the defendants. If they had any lien, it was upon the product of their labor, and not upon the amount due from the defendants to Bean under the contract. But it seems that they claim the right to sue the defendants by virtue of a provision in the contract between Bean and the defendants upon which Bean based his right of action against defendants. The provision referred to required Bean to promptly pay all laborers as soon as payments were made to him, and further stipulated that, upon a failure to do so, the defendants should have the right to retain all subsequent estimates and make payments direct to the laborers. In addition to this, the contract provided that, before any right of action should accrue to Bean, he must furnish satisfactory evidence that the work was free from all liens for labor and materials. But we find nothing in these provisions of the contract that constitutes a promise on the part of the defendants, McCarthy & Reichardt, to pay the claims of these interveners. To protect themselves against liens of laborers and material men, the defendants reserved the right, in certain contingencies, to pay these debts themselves out of money due the plaintiff Bean, and also provided that no right of action should accrue to Bean on the contract until he had paid all such debts. But, though the defendants, as a matter of self protection, reserved the right to pay these debts, they made no promise to do so, and we see nothing in the contract or in the evidence to justify the judgment rendered in this action against them in favor of the interveners. We have not overlooked the fact that the plaintiff Bean alleged in his complaint that it was agreed between himself and the defendants that the amounts due him on the contract should be paid over to Wells to be held by him in trust and applied in payment of debts contracted by Bean to laborers and material men in performing his contract. But this allegation in Bean’s complaint was not evidence against the defendants, McCarthy & Reichardt. The defendants denied that'there was any such agreement, and there is no evidence in the record to show that there was. If we should take this allegation in the complaint as true against Bean, still it would furnish no ground for permitting interveners to join in this action at law against the defendants. At most, it would only entitle them to pro rata portions of the proceeds of the claim, when collected by the trustee, Wells, but would give them no right of action at law against the defendants. 15 Enc. PI. & Pr. 733. The complaint in which this allegation appeared was not signed or sworn to by Bean, and his counsel after-wards claimed that the allegation was the result of a mistake, and asked leave to amend; but we need not consider the effect of this offer to amend, for, even if there was such an agreement as alleged, the rights of the interveners under it would have to be enforced in equity. It follows from what we have said that in our opinion the court erred in permitting the interveners to become parties, and in rendering judgment in their favor against defendants. The judgment is therefore reversed, and the cause remanded for new trial.