Sykes v. First National Bank

Citations

• 2 S.D. 242
• 49 N.W. 1058
• 1891 S.D. LEXIS 26

Syllabus

<p>1. An assignment was made under the following clause in a contract: “The said J. B. Pattee, the party of the first part, agrees and obligates himself to set apart from the payments or fund to be received by him from the Territory of Dakota, by proper and legal assignment and order upon the board of trustees of the Dakota Hospital for the Insane, or other proper authority or body, the sum of $7,088, to be applied from time to time towards the payment of said materials and labor, which said assignment and order shall be duly accepted by said body or authority. It is further expressly understood and agreed that the performance and the payments hereunder are conditioned upon the execution of the bond for the faithful performance of this contract by the second party, (Sykes & Co.,) and the execution of the assignment and order by the first party, (Pattee,) and the acceptance thereof hereinbefore referred to,” Meld, that such assignment was absolute, and not conditioned, and that the assignee, having performed the contract, was entitled to recover the amount specified in the assignment from the party into whose possession the fund came with the knowledge of the assignment, though the assignment was not accepted by 'the body specified in the contract. Held further, that it was competent for the assignees to waive the acceptance, and still rely upon the assignment.</p> <p>2. It was not alleged in plaintiffs’ complaint or in defendant’s answer that the original contract between the assignor and assignees had been changed or modified. Held, that evidence of such change or modification was inadmissible under the pleadings, and that evidence admitted, competent for the purpose of proving notice to defendant of the assignment, was not available to defendant as also tending to 'show a change or modification of the contract.</p> <p>3. The assignment, though it could not have been enforced by action against the territory, was valid as between the assignor and assignees, • and an