183 A.D. 354 | N.Y. App. Div. | 1918
Lead Opinion
The plaintiff, as the owner of nine separate claims for materials furnished and services rendered by various persons
A material error was committed by the court in charging the jury as follows: “When the defendants say that McMahon was a subcontractor, then they have the burden of proof in satisfying you that that is the fact.” If the court had said that the burden of proceeding with the proof had fallen upon the defendants, after it had been shown that the defendants' were the contractors who had engaged to build the road, and that the materials were furnished and the services rendered in connection with the road improvement, there doubtless would have been no error. The court, however, evidently had in. mind no such legal principle, for the burden spoken of was the burden of “ satisfying ” the jury. This was tantamount to saying that the defendants had the burden of establishing that no contracts were made with them by the plaintiff and his assignors. The erroneous instruction thus given was contained in the ina.im charge of the judge, and when excepted to was not withdrawn. The court was subsequently requested to charge that if the jury failed to find that McMahon was an agent of the defendants, plaintiff could not recover. To this request the court stated as follows: “ I charge that, except as I have already charged, if the defendants by their conduct and their attitude and their acts led these men to believe or to give credit because of principalship of the defendants * * Thus the court
The court repeatedly overruled objections to offers of hearsay statements by McMahon that he was the agent of the defendants, and after such statements had been admitted refused to strike them from the record. When asked to charge that the declarations of McMahon that he was an agent were not sufficient to prove agency, the court attempted to correct its rulings by charging as follows: “ I go further than you request, Judge Stratton, and hold that they have got to find it outside of McMahon’s statements that there was an agency, and that his statements are not competent evidence until you find there was agency, and then only as an element or whatever it might show in reference to the amount due for work, labor and material furnished.” It does not seem to me that the errors committed in the admission of incompetent evidence were thus cured. The evidence was not stricken from the record, but was allowed to remain in, only to show, however, “ the amount due for work, labor and material furnished.” In the first place there was no contest over the amount thus due. In the second place the declarations of McMahon, as repeatedly given, formed no part of any bargain or any statement by him made as to the labor and material to be furnished. Thus the witness Guiles testified that after he made his bargain he asked McMahon who was going to do the paying, and “ he said Paddelford and King.” A motion to strike out this testimony was" denied, the court stating that the statements were “ not competent to prove agency * * * unless agency is established.” The fact that the conversation thus admitted contained not a word except declarations of agency by the agent was apparently overlooked. The witness Martin, after he had performed his contract, stated that he asked McMahon “ whose job it was and who done the paying, and he said Mr. Paddelford and Mr. King.” Again, a motion to strike out was denied, although the conversation dealt only with agency. The witness Victoria V. Martin testified only to the statement
The judgment should be reversed and a new trial granted.
All concurred, except John M. Kellogg, P. J., dissenting, with an opinion in which Lyon, J., concurred.
Dissenting Opinion
The judgment is so just and the defendants’ liability so clear that it is quite immaterial whether or not technical errors were committed by the court upon the trial. The defendants had taken a contract for a State highway, and had given the bond required by law. Under section 43 of the State Finance Law we must assume that a clause was inserted in the specifications and in the contract, prohibiting the contractor from assigning, subletting or otherwise disposing of the contract without the consent in writing of the Department, and that if the contract is sublet in violation of that section,
The defendants’ evidence as to subletting is not entirely clear. McMahon was unknown to the defendants, and without any inquiry as to his responsibility or standing they, in a way, claim to have sublet the contract to him for ninety-five per cent of the amount called for by it. They had already entered upon the performance of the contract, and had employed two of the assignors who never had any notice of the subletting. There was no written agreement with McMahon, but one of the defendants swears that he made the.agreement for ninety-five per cent of the contract price; that McMahon was to take over the material on hand and the work already done, at cost; that McMahon had twenty-five men to put upon the job and he apparently had but few men, and that McMahon said he had not the ready money and he told McMahon he would take care of the payrolls and pay the expense of moving the men to the work. The payrolls from time to time were made out or submitted to the defendants, the pay envelopes prepared by them, and one of the defendants, or the wife of one of them, was present when the pay envelopes were handed out. Many workmen were paid direct by the defendants’ checks, and implements required for the work were furnished or paid for by the defendants. One of the defendants says: “We have several jobs in that way; jobs that are really done under our contract but were simply sublet to outsiders to handle.” I think that was this transaction. The State paid the defendants for the work; the work was done under the defendants’ contract, but it was being handled by McMahon who received five per cent of the contract price therefor. Neither McMahon nor the defendants ever told any employee that McMahon had taken over the work; apparently McMahon simply took the place of McDonald who was defendants’ former superintendent. I think, therefore, it was proper to show by different employees that McMahon told them he was the superintendent of the defendants and that the defendants would pay. Concededly they were paying the men. If the transaction was not merely
Lyon, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.