Mannetti v. Doege, 62 N.Y.S. 918

62 N.Y.S. 918 | N.Y. App. Div. | 1900

Hirschberg, J.:

The defendant contracted with one Manger to build him a house. Manger sublet the contract to one Putts. Putts sub-contracted part of the work, including the cellar and foundation, to one Scully; and Scully employed the plaintiff to build the foundation for the sum of sixty dollars. While the work was in progress defendant visited the. job, whereupon plaintiff stopped work and entered into a conversation with the defendant. He told the defendant in substance that he was afraid he would not be paid by Scully and that he, there-* fore, intended to abandon the work. The defendant thereupon said to him, “ Go ahead and finish the work, and I will pay you. Nevér mind about Scully.” The plaintiff completed the work on the faith of this promise, and, in default of payment, has sued and recovered as on an original undertaking.

The general rule undoubtedly is that an agreement to do what one is under contract to do will not furnish a sufficient consideration to support a promise. In the cases cited by the appellant the existing engagement or contract was made with the promisor, and not, as in this instance, with a third person. The plaintiff here was under no engagement or contract with the defendant. The defendant could not compel the plaintiff to continue the work inasmuch as the- latter had not contracted with him to do it. For would an agreement to do what one is under contract to do, be sufficient consideration to support a promise made by a third person unless some new consideration exists at the time of the promise as between the promisor and promisee. And that is the situation here. The defendant had an interest in the prompt prosecution of the work. The plaintiff, apprehensive of losing his pay, had concluded to throw up the job and take the chances of any claim by Scully for damages. ' The defendant, thereupon, in consideration of the benefit resulting to him from uninterrupted work upon the house, made a. new and independent contract with the plaintiff, by the .terms of which the latter consented to and did proceed with the work instead of abandoning it, and in consideration of which the defendant promised to pay the entire sixty dollars. This was a valid and enforcible contract under the authorities. (King v. Despard, 5 Wend. 277; Lattimore v. Harsen, 14 Johns. 330; Alley v. Turck, 8 App. Div. 50 ; Stewart v. Keteltas, 36 N. Y. 388 ; Pond v. Starkweather, 99 id. 411; Scotson v. Pegg, 6 H. & N. 295; Monroe v. Perkins, 9 Pick. 298.)

The contract was not within the Statute of Frauds. (Snell v. Rogers, 70 Hun, 462; White v. Rintoul, 108 N. Y. 222; Raabe v. Squier, 148 id. 81; Clark v. Howard, 150 id. 232.)

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.