Summary
The defendant in error brought an action of assumpsit in the court below, against the plaintiff in error, for work done upon certain sections of the La Crosse and Milwaukee- Railroad, then being in the course of construction.
The amended declaration of the plaintiff below appears to have contained two special counts and also the usual common counts. The second count of the declaration was demurred to by defendants, and the demurrer sustained by the court below. Issues of fact were joined upon the other counts.
The special count in the declaration upon which issue was joined, set forth a written agreement entered into between the plaintiff below and the defendants, on the 27th day of Septem-bex, 1853, in and by which the plaintiff undertook and agreed to construct and finish, for the said defendants, who were contractors on the La Crosse and Milwaukee Eailroad, sections of said road numbers 24, 25 and 26, to the satisfaction and acceptance of the engineer of said railroad company, and according to the several detailed specifications attached to said contract, on or before the first day of March, A. D. 1854; and in and by which' agreement the defendants, also, on their part, on condition of the fulfillment by the plaintiff, undertook and agreed to pay said plaintiff for doing said work, the pertain specified rates and prices therein detailed and set forth, upon the monthly estimates of the chief engineer, as the work should progress, in manner following, viz: JEighty-six and two-thirds per cent, in cash; the remaining thirteen and one-third per cent, to be retained until the toorh is completed, and then to be paid in full paid shares of the capital stock of said railroad company.
The plaintiff avers performance of the contract on his part j and the execution and completion of a large amount of said work, specifying the same; and a readiness and willingness on his part to perform and complete the whole of the said work, in pursuance of the agreement; and alleges that the defendants refused to pay for the work done, at the times and .in the manner as they had undertaken and promised in and by the agreement; and did not, nor would, permit or suffer the plaintiff to proceed to complete the said work, but hindered and prevented him, &c.
The contract, including the specifications attached, the testimony and proceedings in the court below, are of great length; and, as the decision in this court involves but a single point, so much and such parts of said testimony, contract and proceedings as do not relate to or affect the question decided, are omitted here.
The bill of particulars of the plaintiff’s demand contained items of claim for work done and materials furnished on sections 24, 25 and 26, aforesaid, and also on sections 30 and 31.
The foundation-of the claim for work done on sections 30 and 31, was exhibited in the special count in the declaration to which a demurrer had been sustained in the court below; and the claim was now persisted in under the common counts, and depended on the circumstances briefly stated as follows:
Previously to the contract with defendants, Bradley, Whit-temore & Co., the plaintiff, Levy, bad entered into a contract with Sherwood, Ellis & Co., sub-contractors under Bradley, Whittemore & Co., for the construction of said sections 30 and 31; and which contract provided that said Levy should draw his pay upon the monthly estimates for said work directly from Bradley, Whittemore & Co., the general contractors for the whole road. Upon which contract, Bradley, Whittemore & Co., had indorsed their consent and acquiescence as follows:
. “ We hereby consent to the conditions of the within contract. Bradley, Whittemore & Co.”
This contract also contained a provision for the payment for the work, viz: Mghty-six and two-thirds per pent, in cash, and thirteen and one-third per cent, in full paid shares of the capital stock of the railroad company.
On the trial of the cause before the court below, the counsel for the defendants moved the court to instruct the jury:
“ That the plaintiff cannot recover against the defendants for any work done by him on sections 30 and 31, under the contract dated August 27, 1853, between the plaintiff and Sherwood, Ellis & Cp.”
Which point of instruction his Honor, the judge, then and there refused, and instructed the jury as follows:
The plaintiff cannot recover by force of the contract or endowment of the defendants thereon, but may recover for the work, as work done for the use and benefit of the defendants, by their assent and approval, on an implied assumpsit.”
The court further instructed the jury, “that although the work done on sections 30 and 31, was not to be paid for by the defendants as a legal obligatori, imposed by their indorsement on the Sherwood, Ellis & Co. contract, yet the fact that the defendants made that indorsement is in proof; the fact that Sherwood, Ellis & Co., and the plaintiff agreed, in and by that contract, that ■ tbe plaintiff should be paid by tbe defendants, is also in proof; and it is also claimed by tbe plaintiff that tbe-receipts and esti.mates presented by tbe defendants .in tbis case, sbow that tbe .defendants did, -from time to.time, make payments to tbe plaintiff on account of work, there done; - and that it further appears that tbe defendants- were liable, as general contractors, for tbe final completion of all tbe work done or contracted to be done by tbe plaintiff; and if this proof, or any other-proof in tbe case shall satisfy tbe jury, that tbe plaintiff did .the work on sections 30 and 31, with the knowledge and assent of the defendants, looking to them, for bis pay, then they are and were, from tbe beginning, liable to pay for so much work as they have suffered and encouraged tbe plaintiff to perform;. and for such work they are liable to pay according to tbe Sherwood, Ellis & Co. contract as to tbe price, up to December 1st; and either at such, price, or according to tbe actual value for work done, after that, time, according as tbe proof may require under tbe instructions already given/’- ..o • - ■ -
To which instructions (among- many others) tbe defendants excepted.
■ Tbe bill of exceptions^ and tbe assignment of errors are. too ^voluminous for insertion here, especially as no decision was made upon tbe greater part- of tbe points discussed by counsel.
- ■' 1. Tbe court erred- in ruling that tbe defendants were liable to tbe plaintiff for work done by tbe plaintiffs, on sections 30 •-and 31, under- tbe agreement --in writing, between Sherwood,. Ellis' & Co., and tbat-tbe plaintiff could - recover against tbe defendants for tbe same under the common counts in tbis suit.
1st. Tbe agreement indorsed by tbe defendants, upon tbe contract between tbe plaintiff and Sherwood, .Efiis & Go., is within ’ the-statute^-of-frauds .-and-Void.:- because-it is a special-promise to answer for-the .debt or default of another,, and .expresses -no consideration. JR. S. 388; Sail vs. Farmer, 5 Denio, 484; 2 Const. 553.
■2d. Tbe work of the .plaintiff, up to December 1, 1853, was-. done for Sherwood, Ellis & Co., under a special agreement in writing, and there can be no promise implied against the defendants to pay for such work. Parker vs. Emery, 28 Maine, 492; Sherman vs. Stanton, 1 Tyler, 350; Draper vs. Randolph, 4 Harr. 656; Ladue vs. Seymour, 24 Wend. 60.
A sub-contractor cannot resort to the principal, but must look to his immediate employer (Oleves vs. Stockwell, 33 Maine, 341); and a verbal promise to pay for work, by the general contractor, would be null and void. Gurtis vs. Brown, 5 Gush. 488; Tompkins vs. Smith, 3 Stew. & Port. 54; Payne vs. Baldwin, 14 Barb. S. G. 570; Lawson vs. Wyman, 14 Wend. 246 ; Smith vs. Smith, 1 Sandf. S. G. 206; Jaclcson vs. Rayner, 12 John. 291.
The fact appearing from the testimony of either party, that the work was done for other persons under a special contract with them, is a bar to a recovery under the pleadings in this suit. Darner vs. Langton, 1 Car. & P. 168; Morse vs. Ross, 7 N. H. 528.
3d. If the defendants are liable, it is upon the collateral undertaking. It is well settled that there can be no recovery upon such collateral undertaking, except upon a special count. Mines vs. Sarlthorp, 2 Gamp. .215 ; Northrop vs. Jackson, 13 Wend. 85; Briclcham vs. Lrvin, 8 Yeates66 ; Elder vs. Warfield, 7 Ear. & John. 391; Parker vs. Emery, 28 Maine, 492.
4th. If the agreement is to pay in any other form than in money, there can be no recovery under the common counts. Morrison vs. Berkey, 7 S. & R. 246; Sheaver vs. Jewett, 14 Pick. 232; Ranlett vs. Moore, 1 Foster, 336 ; Spratt vs. McKinney, 1 Bibb, 595; Brookes vs. Scott, 2 Munf. 344; Woods vs. Fleming, 6 id. 506 ; Gochran vs. Tatum, 3 Monr. 405 ; Newman vs. McGregor, 5 O. R. 351.
[The points made in the brief of Stark and Arnold are chiefly upon matters not adverted to in the opinion of the court.]
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
