Almond v. Hart

Full title: JOHN ALMOND, Appellant, v . WILLIAM HART and CHARLES G. HART, Respondents

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 1, 1899

46 App. Div. 431 (N.Y. App. Div. 1899)

61 N.Y.S. 849

Opinion

December Term, 1899.

James A. Ward, for the appellant.

Brown, Carlisle Hugo, for the respondents.

SPRING, J.:

A nonsuit was granted, and the plaintiff is, therefore, entitled to the most favorable construction of his case which the evidence warrants. A fair rendering of it is that he and his assignor were engaged by Phippin to work on the defendants' building; that about the time they began their work they inquired of one of the defendants in respect to their pay; that he told them to go ahead and do the work and he would see them paid. During the progress of the work the other defendant told them to keep to work and not to worry about their pay.

The defendants were the owners of the building which was undergoing construction, and were consequently interested in the prosecution of the work. They assumed to be responsible to these men, and in reliance upon that promise the labor was performed. This was not a collateral undertaking. It was not made dependent upon Phippin's failure to pay. It was an unequivocal agreement to become primarily liable, or, at least, was sufficient to carry the case to the jury. In construing promises of this kind, the fact that the promise is made by one having a pecuniary personal interest in the transaction, is often controlling in stamping it as an original undertaking. ( Davis v. Patrick, 141 U.S. 479.)

In that case the plaintiff was foreman of a mining corporation of which the defendant was the substantial owner. The plaintiff complained to him that he was not receiving his pay, and the defendant told him to go on as before and he would see that he got every dollar of his money. "He (plaintiff) said to Mr. Davis if he would guarantee him to be paid he would continue to work, and Davis said he would see him paid." The court in determining this was not a promise to answer for the debt of another, and giving significance to the interest of the defendant in the rendition of the services, say: "But cases sometimes arise in which, though a third party is the original obligor, the primary debtor, the promisor, has a personal, immediate and pecuniary interest in the transaction, and is, therefore, himself a party to be benefited by the performance of the promise. In such cases the reason which underlies and which prompted this statutory provision fails, and the courts will give effect to the promise. As said by this court in Emerson v. Slater (22 How. 28, 43): `Whenever the main purpose and object of the promisor is not to answer for another, but to sub-serve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.'"

It is often difficult to determine whether a promise is within the Statute of Frauds or is an original undertaking. It has, however, become the settled law of this State that where an owner promises a laborer, or materialman, who is under contract with the contractor, that if he will continue his work, or furnish the materials contracted for, he will pay him therefor, this is an independent agreement founded on a new consideration, and the owner is liable for whatever is done in pursuance of this agreement irrespective of the antecedent contract. ( Raabe v. Squier, 148 N.Y. 81; White v. Rintoul, 108 id. 222; Snell v. Rogers, 70 Hun, 462; Bayles v. Wallace, 56 id. 428.) In Raabe v. Squier ( supra) the plaintiffs had entered into an agreement with contractors to furnish materials to be used in the erection of buildings on the premises of defendants. Two installments of these materials had been delivered, but the contractors had neglected to make payment as stipulated in the agreement. The plaintiffs refused to furnish any further materials until they received their pay. With matters in this suspended state the defendants informed plaintiffs that they wished the buildings finished and that if the plaintiffs would deliver the rest of the materials, "they would see them paid therefor." The materials were delivered in reliance upon this promise, and upon the trial the referee dismissed the complaint on the ground the promise was a collateral one and void under the Statute of Frauds. The Court of Appeals in reversing the decision say at page 87: "The contractors had neglected to pay the plaintiffs for the material furnished and they refused to deliver more, as they had the right to do. Under such circumstances the promise was made, and it was in reliance upon the promise that the plaintiffs delivered the rest of the woodwork. The promise thus made was original and founded upon a new consideration, that of the goods. It was beneficial, as we have seen, to the promisors, thus bringing the case within the rule stated by FINCH, J., in White v. Rintoul ( 108 N.Y. 222, 227), in which he says: `Where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment irrespective of the liability of the principal debtor.'"

The test is whether the person sought to be held liable is primarily so, or only in case of the default of another. The precise language used is not always significant. It is the character of the obligation sought to be assumed, and the intention of the parties, and the circumstances surrounding the transaction which are controlling. ( Clark v. Howard, 150 N.Y. 232; Greene v. Burton, 59 Vt. 423.)

The fact that the liability against Phippin, the contractor, may remain unaffected by the promise of the defendants does not bring this within the inhibition of the statute. ( Clark v. Howard, 150 N.Y. 232, 239; Farley v. Cleveland, 4 Cow. 432; Elkin v. Timlin, 151 Penn. St. 491.)

The payment of the plaintiff's claim would necessarily result in the liquidation of any demand he might have against the contractor; but that has no effect on the defendants, for their liability rests upon a consideration, moving to them, which was the work on their building and for their benefit; and the ulterior effect that their unequivocal promise to pay might have upon the original demand is unimportant, as their promise is also an original one, entirely independent of the one made with the contractor. The distinction between the two classes of promises is thus stated in Beach on the Modern Law of Contracts: "The terms original and collateral promise are used to distinguish between the cases where the direct and leading object of the promise is to become the surety or guarantor of another's debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is to promote some interest or purpose of his own." (§ 510.)

In this case the plaintiff and Kieff took the precaution to see the owners relative to their pay; the defendants urged them to go on with the work, and were explicit in assuring them that the pay would be forthcoming. The defendants assumed that burden without reservation. They did not guarantee that Phippin would pay, but personally undertook to see that payment was made. There was no contingent liability; there was no suretyship in their promise. They were the owners, the benefit of the services accrued to them. That it was the intention of the Harts to be the paymasters is supported by the fact they paid each man five dollars. That is a circumstance confirmatory of the character of their promise. ( Floyd v. Wise, 17 N.Y. Supp. 725.) The nonsuit was error, and the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except McLENNAN, J., who dissented.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.