Lachman v. Irish , 72 Hun 491 ( 1893 )

BRADLEY, J.

The plaintiff and his assignors of the claims transferred to him, and on account of which the judgment was recovered, had, on the employment of one James G-. Olmstead, performed work for him upon six houses he was building, two of them on.Ferry street and the other four on Howell street, in the city of Buffalo. The evidence on the part of the plaintiff tends to prove that on one occasion the defendant was at the place where Michael, Harriman, and Lee were or had been at work on one of the Ferry street houses, and at the time were “laying off” there, and they stated to him that they would not work any more until they got their pay for what they had done, and that the defendant said to them, “You go ahead, and do what is right, and I will see you through.” Another of the witnesses, referring to the same interview, states that the defendant said, “What’s the matter with you boys?” and they said, “We have worked pretty nearly long enough without some money,” and the defendant then said, “Now, you boys go on to work, and I will see you all right.” And that on another occasion, when the defendant and Olmstead were together, the plaintiff and Carver, who had been at work on Howell street houses, asked for payment for their work, and that the defendant said to them, “You fellows need not be alarmed about your money; I will see that you get it;” that he also said that he had money in the bank, and “told us to go right on; that we would not lose a cent; that he would see that we got it. All of these persons did some work on the buildings after these promises, but the time they worked, or the amount of compensation to which they were entitled for services thereafter performed by them, does not distinctly appear by any evidence. The recovery was for the services performed both before and after that time. The evidence of the promises of the defendant thus given must, for the purposes of this review, be treated as true, notwithstanding the contradiction of it on the part of the defense; and the question arises whether any valid undertaking to pay those men was assumed by the defendant. So far as liability had accrued at the time such promises were made the debt due to each of those workmen was that of Olmstead, by whom they had been employed, and for whom they had performed the service. The defendant was an insurance agent, and engaged in the business of procuring loans secured upon buildings in the course of construction, from time to time, as the work progressed in course of completion, for persons engaged in building them. This was the business which first brought him to the incompleted structures which Olmstead was erecting and attempting to complete. It is evident that the latter, not having; the means to do it, was dependent upon loans to enable him to proceed with the work. His default in payment of the workmen produced uneasiness on their part, and an apparent purpose to quit unless payment was made or assured, when the defendant’s promise was made. Thereupon they continued to work. If it be assumed that his promise was an original undertaking as to the work thereafter performed by these men, it was clearly collateral as to the debt then due them from Olmstead, unless there was some new consideration, beneficial to the defendant, moving to him, which had the effect to make his promise one to pay his own debt. Ackley v. Parmenter, 98 N. Y. 425; White v. Rintoul, 108 N. Y. 222, 15 N. E. Rep. 318. Then the doctrine of Lawrence v. Fox, 20 N. Y. 268, would be applicable in support of the promise. It does not appear that the defendant’s promise was founded upon any consideration moving to him creating an obligation in discharge of which he promised to pay those existing debts of Olmstead. It is true, he purchased of Olmstead the two incompleted houses on Ferry street, and it may be assumed that he did this before the promises referred to were made by him. But it does not appear what the consideration was of the sale, or that it had any relation to the debts which his grantor then owed the workmen; nor does it appear how much of the debts due them arose for work performed upon those two houses after thd time of his purchase. Such work was presumptively for his benefit, and from his promise to pay for it would arise an obligation to do so. Beyond that the oral promise of the defendant in its relation to work performed before it was made was collateral to the debt of Olmstead, existing before it, and therefore was within the statute, which provides that a promise to answer for the debt, default, or miscarriage of another is void unless in writing, subscribed by the party to be charged with it. 2 Rev. St. p. 135, § 2.¹ In Prime v. Koehler, 77 N. Y. 91, the consideration moving to the promisor secured to him a substantial benefit by way of relieving his premises from the foreclosure of an existing lien upon them. The promise was well held to be an original undertaking on his part. The cases of King v. Despard, 5 Wend. 277, and Quintard v. De Wolf, 34 Barb. 97, approach nearer to the support of the plaintiff’s claim than any others to which our attention has been called, yet they are distinguishable from the present case. The results there were reached upon the ground that the contracts under which the work was commenced were abandoned, and new independent and original undertakings entered into, covering its entire performance. In the case at bar, Olmstead remained liable for the work which had been performed by those parties, and the evidence failed to show that the defendant had assumed the payment of it upon any consideration moving to him which made the amount of such liability his debt. Payne v. Baldwin, 14 Barb. 570; Weyer v. Beach, 14 Hun, 231; Belknap v. Bender, 75 N. Y. 446; Brown v. Weber, 38 N. Y. 187. If it should turn out that the defendant, as consideration of the sale of the Ferry street houses to him, promised to pay the money due from Olmstead to those workmen, he would be liable to them therefor. But that does not appear by th; record before us. And no support in the evidence is seen for the recovery of the amount due for the work performed by them prior to the time of the alleged promises. This question was raised by exceptions to the charge and by refusals to charge the jury as requested. The fact that Olmstead made a general assignment for the benefit of his creditors to the defendant has no essential bearing upon any question for the purposes of this review. The judgment should be reversed, and a new trial granted, costs to abide the event. All concur.

1 8th Ed. vol. 4, p. 2590.