King v. Despard

5 Wend. 277 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

The only question in this case is whether the promise was within the statute. To me, it appears to be an original undertaking. The defendant substantially undertook that the plaintiffs should have their pay according to their contract with Tilman. The consideration for this promise is the building of the house. The plaintiffs were bound by their contract to build it, and Til-man to pay them; but when he became unable to pay, they preferred risking the consequences of a breach of their contract. The defendant had purchased the interest of Tilman in the work; it was important to him to have it completed, and the promise was not to pay Tilman’s contract, but, as I understand it, to pay for the building according to the terms of that contract: it was either that, or a promise to pay as much as the building was worth, it was understood by both parties to be an undertaking to pay according to the terms of Tilman’s contract, as an extra price was charged and paid for variations made from that contract. The drafts of (he plaintiffs upon Tilman, unexplained, would seem to favor the idea that the building was erected upon the responsibility of Tilman, and in pursuance of the contract with him; but when it is shewn that that form was adopted upon the suggestion of the defendant, so as to give him vouchers for the payments from what he owed Tilman, who had guaranteed the erection of the building, certainly this circumstance can prove nothing against the plaintiffs.

There was a new consideration moving from the plaintiffs to the defendant for his promise; in fact, a new contract. The plaintiffs gave their materials and labor to the defendant; this was an injury to them and a benefit to him, and is therefore an abundant consideration. They had abandoned their contract with Tilman ; and had they suffered a prosecution, no more than nominal damages, if any, would have been recovered. Tilman had paid nothing upon the contract; and, unless the building was erected, he had nothing to pay. The plaintiffs hazarded little by refusing to go on with their contract with Tilman; the whole building, therefore, was erected upon the promise of the defendant. He directed the location different from that agreed on with Tilman; he superintended the building and directed alterations; for these an extra price was paid. There is no one circumstance in the case, when properly explained, which proves an intention on the part of the plaintiffs to look to Tilman for their pay. They had abandoned their contract with him; and what passed between them and the defendant must be considered as a new contract. The plaintiffs say we will not put up the building for Tilman; the defendant says I stand in Tilman’s place, I have purchased his interest in the work, and the building is to be erected for my benefit; go on and finish it according to your agreement with Tilman, and I will pay as he agreed to pay. Tilman’s contract was adopted between these new parties as to the work to be done and the compensation to be made; and hence, when deviations were made from the contract, it was called extra work, and paid for as such.

A new trial should be granted, costs to abide the event