Farquhar v. Brown

| Mass. | Mar 1, 1882

Lord, J.

The ruling of the justice of the Superior Court in this case was right. So far as there is any evidence in the case, the work of the plaintiffs was not done at the request of the defendant, nor in law for his benefit, nor was it done upon his promise to pay for it. It was done at the request of Tilley, and for the benefit of Tilley, and upon his promise to pay. If there were ever any privity of contract of any nature between the plaintiffs and the defendant in reference to this claim, it arose from the giving of the due-bill, and there is no other evidence in the case which has any tendency to show any express or implied contract between the plaintiffs and the defendant.

But that due-bill is not declared on; it is an entire promise, and made dependent upon a condition precedent. There is no evidence that the condition was performed, nor, apparently, do the plaintiffs contend that it has been performed so as to give vitality to the due-bill as a due-bill. All the facts in the case are very clear and simple. The defendant made a contract with Tilley to erect an entire building, including the roofing. Tilley suggested to the defendant that he thought of employing the plaintiffs to-do the roofing. The defendant was dissatisfied, and preferred that the plaintiffs should not be employed; but he had no right to interfere with or prevent their employment by Tilley; and Tilley, upon his own account, employed the plaintiffs to do the work. When the work was done, the defendant contended that it was improperly done, and not so done as to be in conformity with the contract, or to require him to pay for it. This complaint, however, was made to Tilley, who had agreed with the defendant to do the work, and not to the plaintiffs, with whom the defendant had no contract. He paid Tilley for all the work which was properly done. He refused to pay him or any one else for the roofing, because it was not properly done. He then gave to Tilley the due-bill which is referred to, which due-bill Tilley passed to the plaintiffs.

It may be assumed that such a due-bill is a sufficient memorandum in writing to support a promise to pay the debt of another, and that the promise was upon sufficient consideration ; but, as said before, it was an independent contract, which implied no promise beyond what was in it; it is not declared on; it is conditional, and there is no allegation or proof of the performance of the condition. Exceptions overruled.