46 A.D. 431 | N.Y. App. Div. | 1899
A nonsuit was granted, and the plaintiff ■ is, therefore, entitled to the most favorable construction of his case which the evidence warrants. A fair rendering of it is that he and his assignor were ■engaged by Phippin to work on the defendants’ building; that .about the time'they began their work they inquired of one of the ■defendants in respect to their pay; that he told them to go ahead ■and do the work and he" would see them paid. During the progress of the work the other defendant told them to keep to work and not to worry about their pay.
The defendants were the owners of the building which was undergoing construction, and were consequently interested in the prosecution of the work. They assumed to he responsible to these men, and in reliance upon that promise the labor was performed. This was not a collateral undertaking, It was not made dependent-upon Phippin’sfailure to pay;-. It was an unequivocal agreement to become primarily liable, or," at least, was sufficient to carry the case to the jury. In construing promises of this kind, the fact that the promise is made by one having a pecuniary personal interest in the transaction, is often controlling in stamping it as an original undertaking. (Davis v. Patrick, 141 U. S. 479.)
In that case the plaintiff was foreman of a. mining corporation •of which the defendant was the substantial owner. _ The plaintiff ^complained to him that he was not receiving his pay, and the
It is .often difficult to determine whether k promise is within the Statute, of Frauds- or -is an original undertaking. It.has,, however, become the settled law of this Slate that where an owner promises-a .laborer, or .materialman, who .is under contract with the' contractor, that if lie will continue his work, or furnish the materials-contracted for, he will pay him therefor,' this is an independent agreement founded on a new consideration, and the owner is liable for whatever is done in pursuance of this agreement irrespective of -the antecedent contract. (Raabe v. Squier, 148 N. Y. 81; White v. Rintoul, 108 id. 222; Snell v. Rogers, 70 Hun, 462 ; Bayles v. Wallace, 56 id. 428.) In Raabe v. Squier (supra) the plaintiffs had entered into an agreement with contractors to-furnish -materials to be used in the erection of buildings on the-premise's of defendants.. Two installments of these material’s had been delivered, but the contractors-had neglected to make payment ,as stipulated .in the agreement. . The .plaintiffs refused to- furnish, any further materials until they received their pay. With matters-in this suspended state the defendants informed plaintiffs that they
The test is whether the person sought to be held liable is primarily so, or only in case of the default of another.]" The precise language used is not always significant. It is' the character of the obligation sought to be assumed, and the intentioii of the parties, and the circumstances surrounding the transaction which are controlling. (Clark v. Howard, 150 N. Y. 232; Greene v. Burton, 59 Vt. 423.)
The fact that the liability against Phippin, the contractor, may remain unaffected by the promise of the defendants does not bring this within the inhibition of the statute. (Clark v. Howard, 150 N. Y. 232, 239; Farley v. Cleveland, 4 Cow. 432 ; Elkin v. Timlin, 151 Penn. St. 491.)
The payment of the plaintiff’s claim would necessarily result in the liquidation of any demand he might have against the contractor ; but that has no effect on the defendants, for their liability rests upon a consideration, moving to them, which was the work on their building and for their benefit; and the ulterior effect that their unequivocal promise to pay might have upon the original demand is unimportant, as their promise is also an original one,
In this case the plaintiff and Kieff took the precaution to see the owners, relative to their pay; the defendants urged them- to go op with the work, and were explicit in assuring them that the pay. would be forthcoming.' • The defendants assumed, that burden without reservation. They did not guarantee that Phippin would pay, but personally undertook to see that payment was- made. There was no contingent liability; there was no suretyship in their promise. They were the owners, the benefit of the services accrued to them. That it was the intention of the Harts to be the paymasters is supported by the fact they paid each-man five dollars. That is a circumstance confirmatory of the character of their promise. (Floyd v. Wise, 17 N. Y. Supp. 725.) The nonsuit was error, and the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred, e'xeépt McLennan, J., who dissented.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.,