133 Va. 400 | Va. | 1922
delivered the opinion of the court.
E. C. Sharrar contracted to' build for B. Baydush an apartment house and store for the sum of $17,800.
The main contention of the plaintiff in error is that this instruction took away from the jury the determination of a question that it was their special province to decide. Where there is any doubt as to what the “promise relied on” is, in view of the surrounding facts and circumstances, in the light of which it is to be construed, that is true (Ranter v. Hofheimer, 118 Va. 625, 88 S. E. 60; Alphin v. Lowman, 115 Va. 441, 79 S. E. 1029, Ann. Cas. 1915A, 863; Conrad v. Ellison Harvey Co., 120 Va. 458, 91 S. E. 763, Ann. Cas. 1918B, 1171, 9 Ann. Cas. 895, 897); but where there is no such doubt, the construction of the promise is one of law for the court. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245, 108 S. E. 15; Goldie, etc., Co. v. Bothwell, 67 Wash. 264, 121 Pac. 60, Ann. Cas. 1913D, 849, 25 R. C. L. 490, sec. 73; 9 Ann. Cas. 895-7. It is manifest that the trial court took the view that the promise was definite and certain, and, waiving the conflict in the testimony and giving the plaintiff the full benefit of his testimony, regarded the promise to be construed as that couched in the language, “If it is money trouble you are hanging back on, you go ahead and finish that work, and look to me for the pay.” This language, used under the circumstances hereinbefore detailed, the trial court construed to create a secondary liability, or a contract of guaranty, on the part of Baydush, and hence unenforceable unless in writing.
Way had reason to doubt the solvency of Sharrar,
“The real character of a promise does not depend altogether on the form of expression, but largely upon the situation of the parties and upon whether they understood it to be a collateral or direct promise.” Davis v. Patrick, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826.
“The surrounding facts and circumstances as well' as the language used are important elements in determining the nature of the promise.” Bank Note Co. v. Shrader, 70 W. Va. 475, 74 S. E. 416, Ann. Cas. 1914A, 488.
“It sometimes happens, where real estate is being improved under a contract with the owner, that the contractor sublets the work or part thereof and after the default of such contractor, to induce the subcontractor to continue the performance of his' contract, the owner promises to pay or see that the subcontractor is paid for his work. In such a ease it seems, as a general rule, as respects work done by the subcontractor on the faith of such promise, that the promise is not regarded as within the statute, it being considered that the work was continued on the credit of the promisor. And it has been said that the principle which the well reasoned cases establish is this: where the owner of property undertakes to pay for work and materials to be subsequently done and furnished by a subcontractor in order to secure the completion of a building in a case where the principal contractor has -failed to carry on the work, the promise is an original- one, and not within the statute-; this .principle is intrinsically just and its enforcement does not in the-slightest-.degree tend'‘to dhe: misoh-ief'-the statute was intended to repress.” 25 R. C. L. 522.
It is unnecessary for us in the instant case to go as far as the court went in Emerson v. Slater, supra, as there are circumstances under which the doctrine there announced should probably be qualified. 1 Williston on Contracts, secs. 470, 472.
In Gibson County v. Cincinnati Steam Heating Co., 128 Ind. 240, 27 N. E. 612, 12 L. R. A. 502, the principal contractor for a building undertook to carry on the work and the owner undertook to' pay for work and materials to be subsequently done and furnished by a subcontractor in order to secure the completion of the building. The promise was not in writing but was a verbal acceptance of a written proposition, and it was held that the promise was an original one, and that no writing was necessary. It was said that the principle involved was intrinsically just, and that
In Crawford v. Edison, 45 Ohio St. 246, 13 N. E. 80, a contract had been made by Smith to furnish materials and build a house for Crawford. Smith employed Edison to put on the roof and do certain other work for a stipulated sum, to be paid when the work was completed. When Edison had done about two-thirds of the work, Smith abandoned the job and left the country without paying Edison or making provision for paying him. Thereupon Edison applied to Crawford to know what was to be done about his bill, and stating that he would not go on further with the work unless he was paid. He testified that Crawford replied: “Mr. Edison, you need have no fear about your pay. You go right along and complete your job. There is enough owing to Smith and I will pay you.” And later on the same day: “You need not have any trouble about that matter, as I will pay you as I said.” Crawford denied making any such promise, but his wife testified that Crawford told Edison to go on and put up the spouting and he would see him paid from then on, anyway. Edison went on and completed the job and charged the amount to Crawford. It was held that the promise in this case was not collateral to pay the debt of another, but was an original promise for Crawford’s own benefit, and was unaffected by the statute of frauds. To the same effect see Nelson v. Boynton, 3 Metc. (Mass.) 400, 37 Am. Dec. 148, opinion by Shaw, C. J., and Clifford v. Luhring, 69 Ill. 401.
In Reisler v. Silbermintz, 99 App. Div. 131, 90 N. Y. Supp. 967, the plaintiffs were subcontractors under S. to do certain iron work for the owner, who accepted an order drawn by S. for the amount due the subcontractors, conditioned upon the performance of the contract by S., who thereafter abandoned the contract; whereupon the owner orally agreed to pay the subcontractors the whole value of their work in consideration of their finishing the job, and it was held that the owner’s promise to pay was an original undertaking and not within the statute of frauds.
Howell v. Harvey, 65 W. Va. 310, 64 S. E. 249, 22 L. R. A. (N. S.) 1077, contains a valuable discussion of many of the cases on the subject now under consideration. In that case Peyton contracted with Harvey to furnish material and build a house for him. Peyton sublet a part of the work to Howell, who proceeded with his work until June, 1899, when his
There are many cases to the same effect, but the citations made are deemed sufficient.
In Noyes v. Humphreys, 11 Gratt. (52 Va.) 636, the prior cases in this jurisdiction are cited and it appears from them that the holding in this jurisdiction is that if the original contractor remains liable and the undertaking of the new party is merely that of surety or guarantor, the undertaking of the latter is collateral and within the statute of frauds. We do not propose to depart from that holding in this case. In the ease at bar, the evidence was conflicting on the subject of the promise, but the trial court instructed the jury “that the promise relied on in this suit was to pay the debt of E. C. Sharrar, and unless the same was in writing the plaintiff cannot recover in this motion.” Now the promise relied on by the plaintiff was, “If it is money trouble you are hanging back on, you go ahead and finish that work and look to me for the pay.” These words, of themselves, do not import any
“Q. You testified downstairs in the other court?
“A. Yes, sir.
“Q. At the other trial of this ease?
“A. Yes, sir.
“Q. At that trial, you testified as follows: ‘Yes, sir. He asked Mr, Way how soon he can start, and he told him he was very busy, and Mr. Baydush said, ‘If it is money matters you are standing on, I will be responsible for the money.’ That was what he said?
“A. Yes, sir.”
In addition to this the defendant in error relied upon the fact that Way attended certain meetings of the creditors of Sharrar after he had thrown up the job, and after the building had been completed. Way
The following instruction was tendered by the plaintiff: “The court instructs the jury that if you believe from - the evidence that the said Baydush promised to see that the said Way was paid for the work in question and that the object of said promise was to subserve some pecuniary or business purpose of said Baydush, involving either a benefit to himself or damage to the said Way, his promise is not within the statute of frauds and you shall find for the plaintiff.” The court committed no error in refusing this instruction. Noyes v. Humphreys, 11 Gratt. (52 Va.) 636, and cases cited.
Reversed.