98 N.H. 118 | N.H. | 1953
Claims for negligence rest primarily upon a violation of some duty owed by the offender to the injured party. Duncan v. Company, 91 N. H. 349, 350. “If there is no duty there is no negligence.” Stevens v. Manchester, 81 N. H. 369. The sole question presented here is whether one who undertakes to employ an independent contractor owes a duty, to such persons as may thereafter furnish labor and materials on the order of the contractor in the performance of the work, to exercise ordinary care in selecting a contractor who is competent to perform his financial obligations to those persons.
This contention overlooks one of the important bases on which the duty is imposed in the latter situation. The third party who may be harmed if the work is not performed with due care is neither aware of the risk nor can he avoid it. As between a third person in this situation and the employer who can anticipate the risk and, by the exercise of due care, avoid it, the law recognizes a relationship. It imposes the duty on the employer to use ordinary care in selecting a contractor who is competent to do the work. In the case at bar, the third party, in whose favor a duty is sought to be imposed on the employer, is the subcontractor. The risk against which protection is sought is nonpayment as a result of the contractor’s breach of his contract with the subcontractor and not the contractor’s lack of due care. The subcontractor does business with the contractor directly and by his own choice. He sets his price and the terms of payment. Primarily he relies for payment upon the credit of the contractor, some knowledge of which is as readily available to him as to the employer. He voluntarily assumes the risk that he may not be paid, a risk which is a recognized element of business, known to him before he extends credit to the contractor. Unlike the third person under the accepted doctrine, the subcontractor is fully aware of this risk. Furthermore, he is able to avoid it. Even after he has undertaken the risk in the first instance, he is not obliged to continue in reliance upon the contractor’s credit but may fully secure the amount due him through the seasonable placing of a lien on the employer’s property. R. L., c. 264, ss. 15, 16.
It is neither claimed nor alleged that the employer represented to the subcontractor that the contractor was financially responsible. Its hiring of the contractor is not such a representation. Whether
The plaintiffs have no cause of action against the defendant upon their pleadings. In accordance with the stipulation of the parties:
Judgment for the defendant.