Martin

Action to recover a balance of $1,487.09 for work and labor done by plaintiff as a subcontractor of defendant.

Judgment went for plaintiff, from which, and an order denying its motion for a new trial, defendant appeals.

It appears that defendant, exacting a bond conditioned to protect it from loss in so doing, paid the sum in question, concededly earned by plaintiff in the performance of the work under the terms of a contract made by him with defendant, to one John Mulligan. The defense interposed by answer to plaintiff’s recovery thereof was, first, that the payment so made to Mulligan was pursuant to an assignment of such balance made by plaintiff; and second, that Mulligan was a partner of plaintiff and as such entitled to receive and receipt for moneys due the copartnership.

With regard to the assignment, the evidence conclusively shows, as found by the court, that plaintiff did, on March 31, 1913, assign to Mulligan any and all sums of money due or to become due to him on account of the work and labor the performance of which was called for by his said contract with defendant; that said assignment was made to secure the payment of certain indebtedness then due from…