Opinion
December Term, 1899.
Judgment of the Municipal Court modified by deducting from plaintiff's recovery the sum of seventy-five dollars, and as modified affirmed, without costs of this appeal to either party.
The pleadings in this case were oral, and the return of the justice states that the plaintiff declared on a breach of contract. The plaintiff was the tenant of certain premises, one of the walls of the building on which was ordered by the department of buildings, on account of insecurity, to be taken down and rebuilt. The defendant is claimed to have been the contractor employed by the owner of the premises to do the work required by the city officials. He contends that he was merely the agent of another person named Hedden, who he asserts was the real contractor. He signed the contract for the work as John G. Porter, agent. The word "agent" is mere descriptio personæ, and on its face the contract is that of Porter individually. The evidence was sufficient to hold him as such. The plaintiff testifies that on being applied to by Porter to remove the former's goods so as to enable the work to be carried on, Porter stated that he would be paid for the work; that the estate (the owner of the building) would do what was right, and whatever the expense was it would be paid. The defendant testified that he said to the plaintiff "that the Chichester estate was fair and honest with their tenants, and * * * if the Chichester estate don't pay you that amount I will." It is contended that this undertaking was merely a guaranty, void under the Statute of Frauds, and that no liability can be based upon it. It is urged in opposition to this contention that the defense of the Statute of Frauds was not pleaded, and, therefore, could not be raised. This is the general rule, but seems not to apply in a Justice's Court. ( Hartwell v. Young, 67 Hun, 472.) We think, however, there is a good answer to the claim. Porter had contracted to do the work. The duty of removing the plaintiff's goods and prosecuting the work so as not unnecessarily or improperly to interfere with the tenant rested upon him. ( Sulzbacher v. Dickie, 51 How. Pr. 500.) It appears that he had no authority to bind the Chichester estate, and that the work was for his own benefit. Therefore, if it be assumed that his engagement was collateral, he nevertheless was personally liable for his want of power as agent. (Story Agency [9th ed.], § 264.) We think it would be too narrow a construction of the agreement to confine the promise of reimbursement to the mere moving of the goods. We construe it to include indemnity for all injury that might be done the plaintiff from the improper prosecution of the work. The defendant would be liable for such damages in an action in tort; but, under the construction we have given to the contract (which does not consist merely of the words above quoted), the defendant was liable to the same extent on his express promise. But the law made it obligatory upon the owner to comply with the order of the public authorities, and for such interruption to his business as was the necessary result of even a proper prosecution of the work, neither his landlord nor the contractor was liable. ( White v. Thurber, 55 Hun, 447; Ward v. Kelsey, 42 Barb. 582; Turner v. McCarthy, 4 E.D. Smith, 247.) Under this principle we cannot see that the plaintiff was entitled to the amount paid for the services of watchmen to guard his goods while the work was going on. The judgment should be reduced by deducting therefrom the sum of seventy-five dollars allowed for this claim, and, as reduced, affirmed, without costs of this appeal to either party. All concurred.