41 Mich. 48 | Mich. | 1879
At the June term a year ago we reversed’ a judgment which had been given for these plaintiffs.. Baker v. Ingersoll, 39 Mich. A second trial has been had since resulting in a judgment against them, and a reversal is now sought on their part.
The defendant engaged one Caswell to provide the materials and perform certain work for him on a building, and Caswell thereupon agreed with the plaintiffs to supply the required materials for $333. They delivered.
The defendant denies making this agreement with the plaintiffs and insists that there is no ground for holding him liable, and he makes the point that the ruling on the former hearing requires an affirmance of the present judgment.
We are unable to assent to this view of the bearing »of that decision. The record then showed that the judge refused to instruct the jury that if the agreement with Caswell remained not canceled, the oral promise by the defendant was not binding, and we considered there was room for the jury to make use of the circumstances in such manner as to call for the instruction requested, and.we accordingly reversed the judgment because it was not given.
i At the last trial the entire evidence was withheld from the jury, and the judge, assuming there was none for them to consider and that there was no case on which a finding for the plaintiffs could be made, ordered a verdict for the defendant. Hence in its present attitude the case raises the- general question whether the plaintiffs adduced evidence which entitled them to take .the opinion of the jury.
It is the same as admitted that the articles in question were in fact furnished by the plaintiffs for the defendant’s building, and were there used, and in accordance with the understanding of all the parties.
As the action is against Baker alone, and supposes a separate and not a joint liability, it will not bear proof that he became liable as joint principal with Cas
If we regard the controversy in the shape it bears in the record, it seems to be reduced to this question: whether the articles sued for were furnished by the plaintiffs on a new and distinct agreement with the defendant that he alone should be their debtor for the price, and their right to a verdict would seem to depend upon getting an affirmative answer.
The fact that Caswell had previously entered into an agreement with the plaintiffs for the same • things and for the same use, and was not aware they were resolved not to act further under it, cannot be regarded as necessarily in derogation of their claim.
There is no rule of law which forbade these parties from making a distinct original agreement between themselves under which the obligation incurred by defendant should have no connection whatever with the obligation, if any, of Caswell under his agreement.
It must be admitted, therefore, that the earlier agreement with Caswell and his ignorance that the plaintiffs had decided they would not deliver these articles on it was not incompatible with a valid dealing between these parties on their own grounds and apart from the contract relation between the plaintiffs and Caswell.
And if such was the ease, — if these parties holding aloof from the contract relation between the plaintiffs and Caswell, whether that relation was or was not rescinded, and contracting a relation exclusively between themselves, dealt for the articles in question, — then as to such transaction there was no other person indebted and no debt of “another person” to which the defendant’s promise could be referred. His undertaking was as principal, and not as guarantor or surety, and he was bound by it.
On the other hand, if the parties contemplated'that the articles should be furnished under the agreement
The record discloses evidence tending to sustain the claim of plaintiffs that defendant contracted and bound himself as principal, and the construction and force of this evidence with the rest ought to be settled by the jury.
The judgment should be reversed with costs and a new trial granted.
