Wood v. Donahue , 94 Pa. 128 ( 1880 )

Mr. Justice Trunkey

delivered the opinion of the court,

Barnett, by his agent, contracted for grading with Richardson, who employed a number of men on the work and failed to pay their wages. This action is by one of those laborers to recover the balance due him for work on that contract, upon the allegation that he did said work for Wood on his agreement to pay for it. The court instructed the jury that the labor was done for Richardson, who was primarily liable for payment, and that Wood, Barnett’s agent, was liable to the laborers for all money due to Richardson on the contract with him.

This claim is for labor prior to October 1st 1878. After that date the plaintiff was paid for his work by Barnett, and his receipt, dated the 7th of same month, recites that they “agreed that all work done before October 1st was performed for J. C. Richardson, contractor, who alone is liable for the same to us and others employed by him and prior to that date.” The plaintiff testifies .that he heard this agreement read, and signed it because the money would not have been paid without. There is no evidence of fraud or mistake, and the court so charged. Why then should it be permitted, on an alleged prior oral agreement, to hold Barnett’s agent liable ? The plaintiff says, “ I would not have worked, if I hadn’t understood I was working for Mr. Wood, * * * worked for Wood from August 26th to October 1st.” His claim is thus stated in the charge of the court: “ The plaintiff holds that Mr. Wood promised to answer for Richardson’s debt, and pay him for all that should be due from August 26th, but the agreement contained in the receipt of October 7th contradicts this view.” ' Because of such-contradiction the jury, in effect, were instructed that his testimony was not reliable, and they should adopt the receipt as corroborating Wood. On the plaintiff’s showing of the contract he had no case, for it was at variance with the writing which evidences the final agreement. It is a severe rule which holds the defendant liable on a contract which neither he nor the plaintiff claims is in force. Whatever its terms, it was made in August, when Richardson was carrying on his work; and the receipt was after Richardson’s default, when the relation of the parties had changed. If the receipt annulled the prior oral contract, as proved by Donahue, so it did, if as proved by Wood.

In one view of this case, the parties agree that the defendant is liable to the plaintiff for his proportion of money in the defendant’s hands, held for payment of wages due from Richardson to his employees. After Richardson so neglected his contract that it had to be taken from him, what money was due thereon i The only evidence of any is the settlement showing $106.10, which he authorized Wood to pay to the men for grading prior to October 1st in proportion to the amounts due them. That sum is all Wood had in his hands, and all he was authorized to pay by any agreement, made after Richardson failed in the performance of his contract with Barnett. The plaintiff can recover his proportionate share, but the burden of showing what that is rests on himself. How can it be said that Wood has the pay-rolls showing the amount ? There is no proof that he has. He was not doing the work prior to October, nor was his principal, Barnett. Richardson did it, and the pay-rolls belong to him. After October 1st, Barnett, by his agent Wood, did the work, and he has the pay-rolls with the receipts for that. -The situation of the parties does not shift the burden upon Wood to show how much Richardson owes each of his employees. The plaintiff must make out his case with reasonable certainty.

The defendant’s third point was rightly refused, but we are of opinion that the instructions in its answer were erroneous. Also the sixth and seventh assignments must be sustained.

Judgment reversed, and venire facias de novo awarded. ■