75 Ill. 11 | Ill. | 1874
delivered the opinion of the Court:
It appears from the record that one M. C. Ott contracted with the Kankakee and Indiana Railroad Company to grade a portion of their roadway. This contract was in writing. Afterwards, Ott entered into a written contract with appellants,by which they agreed to perform the greater part of his contract for a stipulated price. Hnder his agreement with the company, Ott commenced the performance of the part of the grading which he had not underlet to appellants, and they commenced labor under their agreement with Ott.
It likewise appears that appellees afterwards recovered a judgment against Ott for $377.62, on which an execution was issued to the sheriff of Kankakee county to execute. He returned the execution no property found. Thereupon appellees sued out a garnishee summons against the railroad company as the debtors of Ott. The garnishees answered, and a trial was had before the court without a jury,-when the court found the issues for the appellees and rendered judgment in their favor, from which appellants prosecute this appeal.
It appears, from the answers and the testimony in the case, that after Ott and appellants entered into their contract and the latter had commenced work, there was a verbal agreement entered into between Ott, appellants and the treasurer of the railroad company, which was that he should pay to appellants the money coining to them under their contract with Ott when the work was completed and the final estimate was made. The treasurer of the railroad company says the parties came to him after Ott had stated that appellants would quit work unless he would guarantee the payment, and Ott said to him that he should pay Laidlou & Co., instead of making payment to him, and that he so agreed, but that Laidlou said nothing. Under this, Laidlou & Go. claim the money, and the railroad company claim they owe appellants, and not Ott, for' the labor done by them.
On the other hand, it is claimed that the conversation referred to did not constitute a contract, because it was not in writing, was without consideration, and indefinite and uncertain. Whatever the parties may have intended, there was no pretense that the contract between appellants and Ott was surrendered up or canceled. It was not even referred to by either party. There is no evidence that any new consideration was paid by appellants to the treasurer of the railroad company, or that appellants agreed to release Ott on his contract. Hor is it pretended that Swannell, the treasurer, guaranteed, or even proposed to guarantee the payment of this money to appellant.
There is no evidence in the record that the railway company released Ott from his contract with them for the completion of the work. Uor is there any evidence that the treasurer, even if he had the power, made any contract by which appellants were to perform the work, nor did they even talk about what appellants were to do under the old or new agreement. All that it amounted to was simply a request by Ott to the treasurer that he pay the money due under his contract to appellants,to which he assented. We perceive none of the elements of a contract that appellants would perform the labor for the railroad company and be liable to them for its n on-performance. Had appellants failed to go on and perform the labor, does any one suppose the railroad company could have sued and recovered from them damages for a breach of the contract claimed to have been made ? We suppose not.
There can be no pretense that the railroad company guaranteed the performance of the contract by Ott. There is-no evidence of such a guaranty or any thing that resembles one. There was no language used from which such a contract can be implied. But all that can be said is that Ott requested the treasurer to pay a debt he owed or would owe to appellants, to which he assented. This is clearly within the statute of frauds, and not being in writing the railroad company are not liable. Had the directors, by resolution spread on their records, assumed the payment, then a very different question would have been presented. We think the record shows that the money in the hands of the railroad was liable to the garnishee process, and the judgment of the court below must be affirmed.
Judgment affirmed.
