Mathews v. Libbey Bros., 42 App. D.C. 272

Mathews v. Libbey Bros.

42 App. D.C. 272 | D.C. | 1914

Mr. Chief Justice Shepard

delivered the opinion of the Court:

Whilst, by the law of Maryland, defendant’s promises could be subjected to a lien for materials furnished his contractor for use in the construction of his house in that State, he was not personally bound for his contractor’s debt. The relation of debtor and creditor did not subsist between the defendant and the plaintiffs. The liability of the defendant in this action depended, as the court charged the jury, upon proof of his promise to pay the debt of another. The promise to refrain *277from prosecuting a lien upon defendant’s promises for materials furnished his contractor, if acted upon, is a sufficient consideration for his promise.

The question on which the case turns is the character of the evidence of that promise. Is parol evidence of the promise, as charged by the court, sufficient in law, or is it necessary that the promise shall have been in writing, as stated in defendant’s refused instruction?

The case is governed by sec. 1257 of the Code [31 Stat. at L. 1387, chap. 851], which reads as follows:

“No subcontractor, materialman, or workman employed under the original contractor shall be entitled to a personal judgment or decree against the owner of the premises for the amount due to him from said original contractor, except upon a special promise of such owner, in writing, for a sufficient consideration, to be answerable for the same.”

This section plainly applies to the situation presented here.

Plaintiffs contend that it cannot govern this promise, because it is a contract to be performed in Maryland, and must, therefore, be governed by the law of that State. The contention assumes that the statute of frauds of Maryland does not apply to a parol promise to pay the debt of another, made Tinder the circumstances of this case.

It is true that the contract between defendant and the building contractor was to be performed in Maryland. So likewise with the contract between the contractor and the plaintiffs, if it may be inferred that it provided for the delivery of the materials in Maryland. But plaintiffs were not parties to the first of those contracts, and defendant was not a party to the second. They have nothing to do with the contract declared upon.

The evidence of the plaintiffs shows that this promise was made in the office of the plaintiffs’ attorney, in the District of Columbia. No place of performance was stipulated, and it may be inferred from the fact that payments upon the account were there made that it was expected to be performed in the District of Columbia, where plaintiffs resided and carried on their business.

*278Be that as it may, however, the action upon the promise was brought in the District of Columbia, and the remedy is governed by its statute, which requires that such a promise be in writing. Willard v. Wood, 1 App. D. C. 44, 58; Bank of United States v. Donnally, 8 Pet. 361, 372, 8 L. ed. 974, 978; Willard v. Wood, 164 U. S. 502, 520, 41 L. ed. 531, 538, 17 Sup. Ct. Rep. 176. The situation is governed by the principle declared in those cases. ■

The court should have charged the jury that parol evidence of the promise was not sufficient to warrant recovery.

The judgment, is reversed, with costs, and the cause remanded with direction to order a new trial. Reversed.