Somerville v. Williams
12 App. D.C. 520
D.C. Cir.
1898
Check Treatment
Mr. Justice Morris

delivered the opinion of the Court:

While the record now before us is not entirely clear as to the extra materials furnished by the appellants, and reference to an auditor may be required to establish specifically the amount of their claim, it does not seem to be seriously controverted that the appellants furnished all the materials in question substantially in accordance with their claim. The controversy in the case is, whether their contract to furnish these materials was with Winfree or with Brown; and whether, if it was with Winfree, it was of a character that could be enforced. For, if the contract of the appellant was with Brown, who was himself only a subcontractor, the appellants, as subcontractors of a subcontractor, as they would be in that case, are not entitled to a lien. Leitch v. Hospital, 6 App. D. C. 247; Herrell v. Donovan, 7 App. D. C. *524336. The existence of a contract between the appellants and Winfree is conceded; but it is claimed on behalf of the appellees to be only a contract of guaranty. And it seems to be understood, also, that it was claimed by the appellees in the court below that the contract being unilateral was incapable of enforcement. Apparently in accordance with those views was the decision of that court; but we find ourselves unable to accede to them.

The unilateral character of the contract or order of March 22, 1895, is of no consequence whatever in the present controversy. The objection is one that may properly be made in the case of an executory contract, but not in the case of an executed one; and the contract in question is an executed contract. It is well settled law that, when a defendant has received the consideration of a written agreement, it is no answer to a breach of such contract that the agreement does not bind the plaintiff. Storm v. United States, 94 U. S. 76; Richardson v. Hardwick, 106 U. S. 252. But this point, it may be proper to add, does not seem to be seriously, if at all, insisted upon in this court by the appellees.

The substantial contention on behalf of the appellees is, that the contract in the premises was between the appellants and Thomas Brown; that the credit given by the appellants was given to Brown, and that the contract of Winfree with the appellants was only that of guaranty or suretyship. The evidence of contract is the order of March 22, 1895, and the fact of the acceptance thereof and the delivery of the materials thereunder by the appellants. It is conceded that that there was no other contract than that evidenced by this order; and both the appellants and Brown explicitly repudiate the existence of any contract between themselves, and indeed prove conclusively that the appellants refused to give credit to Brown in the matter. What is the nature then of the contractual relations evidenced by the order of March 22, 1895?

This question does not seem to be very difficult to *525answer. When one person gives an order to a second person to deliver goods to a third, and such order stands alone and without explanatory circumstances of any kind, it is very clear that the contract in the case is between the first and second, that the credit is given by the second to the first, and that the third person is no more than a messenger or agent of the first person to receive the goods. This is the plain dictate of reason and common sense, and no elaboration of argument is required for its enforcement. And it necessarily follows from this primary rule or principle that, if one would seek to invalidate this inference, the burden of proof is upon him to show that something different was intended. How has that burden been borne in the present case by the appellees upon whom it is imposed? It is sufficient to say, in answer to the question, that they have wholly failed to show that the order in question was intended to mean anything different from that which it prima fade purports to mean — a request from Winfree to the appellants to furnish materials to him (Win-free) through the agency or instrumentality of Brown. The testimony of the appellees, even if it stood alone and uncontradicted, would scarcely be sufficient to sustain their contention; and we regard the vast preponderance of testimony to the contrary to be on the side of the appellants. In fact, we are disposed to regard the order of March 22, 1895, as wholly'unaffected by the testimony on either side, and as justifying the natural inference to be drawn from it — that it was a contract primarily between the appellants and Winfree, and not a guaranty by the latter of a contract between the appellants and Brown. By the introduction in evidence of the order of March 22, 1895, the appellants virtually proved their prima facie case. After that, it was incumbent on the appellees to show, if they could, that the natural and ordinary inference from this order was not the one intended by the parties; and this, in our opinion, they have wholly failed to do.

*526But apart from this order, there is another consideration of serious import in the case. As already stated, Brown abandoned the work while it was in progress and almost in the midst of it; and Winfree thereupon took possession of the materials, which, according to his claim, must have been the property of Brown, converted them to his own use, employed another plumber to work- them into the buildings; and all this with full knowledge that the appellants had not been paid for them, and, apparently, with the purpose on his own part not to pay for them. Now, we can not assume that he thereby intended to commit an act of spoliation, which would be little better than robbery, if his own present theory were correct. We prefer to think that he supposed that he was using his own property, and not that of Brown; property sold to himself and not to any one else by the appellants, and which he had a perfect right so to use. By such use of the property he distinctly affirmed the contract between himself and the appellants, and from such use we- might be justified in inferring the existence of such a contract, even if there were no other proof of it. An implied contract might be presumed that would justify the action of the appellants.

We are entirely satisfied that, while there ivas, in the first instance, a contract between Winfree and Brown which covered the subject-matter of the claim of the appellants, yet the subsequent action of the parties eliminated that subject-matter from that contract, and made it the subject of a distinct and independent contract between the appellants and Winfree, evidenced by the order of March 22, 1895, by which the ■ appellants were constituted subcontractors in immediate relation with the contractor Winfree, in consequence' of which relation they become entitled to the lien which they now claim. Nor is _ this conclusion contrary to anything that was said in the case of Herrell v. Donovan, 7 App. D. C. 322, which, like the case of Leitch v. Emergency Hospital, 6 App. D. C. 247, was that of a subcon*527tractor of a subcontractor seeking to hold a lien, where there was nothing to show the existence of immediate contractual ¡relations between him and the contractor. On the contrary, we said in that case what is entirely appropriate to the present. We said:

“Nor is there any question of novation, or of anything being taken out of the contract between Vaughn and Cozzens, and made the subject of contract between Vaughn and Herrell and Company. It was competent for the parties to make such an arrangement, if they thought proper; but the proof is not of any such arrangement, but of an entirely different one — an arrangement, in fact, wholly inconsistent with the theory of novation.”

The suppositious case there mentioned is the actual case now before us. Here was something taken out of one contract and made the subject-matter of another.

Nor is there any injury done to any one by the conclusion here reached. It is quite evident that the appellants are justly entitled to compensation for the materials furnished by them; and that the owner of the property, or her agent, by whose action in the premises she must be affected, having money in his hands, which equitably and justly should, in part at least, have been applied to the satisfaction of the claim of the appellants, yet paid over that money to Win-free with full knowledge of the situation, of the existence of the notice of lien, and of the institution of this suit.

In view of what we have said, it follows that the decree of the Supreme Court of the District of Columbia in this cause must be reversed, with costs; and that the cause must be remanded to that court, with directions to enter a decree therein in accordance with this opinion, after such preliminary proceedings, if any should bo deemed necessary, as may be proper to ascertain the amount justly due and payable to the appellants in the premises. And it is so ordered.