7 S.D. 564 | S.D. | 1895
For a cause of action against the defendant, the complaint in this case states that plaintiff, a keeper of an hotel, furnished board and lodging to one Martin, an employe of the defendant, for a period of nine weeks, at the special instance and request of the latter, and that the said board and lodging are reasonably worth the sum of $86, no part of which has been paid. Defendant, by his answer, alleged a nonjoinder of parties defendant, and denied that he ever requested plaintiff to provide the board and lodging mentioned in the complaint, or that he ever promised to pay for the same; and further alleges that on thefirst day of April, 1892, heand two otherparties, named in the answer, employed Martin for three months to care for and handle certain stallions which they owned jointly, at an agreed price of .$30 per month and board, and that Martin has received the same in full from the defendants. The case was tried to the court on the'pleadings without amendment and without a jury, and resulted in a verdict for the plaintiff, from which, and from an order overruling a motion for a new trial, defendant appeals. Our view of the case as to
The facts shown by the undisputed evidence and as found by the court are, in substance, as follows: The defendant, W. S. Billinghurst, C. B. Billinghurst, and George H. Small, jointly owned the horses which Martin contracted to handle at $30 per month and board. On the first day of April the defendant told one Swain, an hotel proprietor, to board Martin, and to come to him when he wanted any money. Under this arrangement with Swain the board was furnished and paid for by the defendant, until the first day of the following September, when plaintiff became the proprietor of the hotel, and continued to board Martin for nine successive weeks, without notifying defendant of the change. The judgment of the trial court is based upon the conclusion that an implied agreement existed between the parties to the suit whereby appellant became liable to pay respondent a reasonable compensation for boarding and lodging said Martin after Swain ceased to be proprietor of the hotel. The arrangement between Swain and appellant, consummated fully five months before respondent began to board Martin, and,- so far as it appears from the record, more than seven months before appellant knew that Martin was boarding with respondent, or that he would be called upon to pay therefor, is not sufficient to establish an implied liability on the part of appellant, nor an obligation entered into between appellant and Swain for the benefit of respondent, a third party, and an unconcerned, disinterested stranger to the transaction. It is difficult to see how the contract . between appellant and Swain conferred any right upon respondent to voluntarily assume appellant’s obligation to board Martin.
Concerning a case disclosing repulsive inhumanity upon the part of á man who, in consideration of a conveyance of all her property had undertaken and agreed to provide for the grantor, upon the refusal of the promisor to comply with his con