Clifford v. Luhring

Mr. Chief Justice Breese delivered the opinion of the Court:

This was an action of assumpsit, in the Superior Court of Cook county, to recover for services as plasterers on a house of the defendant in the city of Chicago. The theory of the plaintiff's case is, a promise on the part of defendant to pay them for their work.

It appears the contract for the whole work on the building was let by defendant to one Gruís, of whom plaintiffs were sub-contractors, and on his failing to perform his contract with them, they testify they made known the fact to defendant, and informed him they would be obliged to quit the work, when he told them to go on, and he would pay them.

There is some conflict in the testimony as to the extent and nature of this promise, which the jury have settled in a manner which we are not justified in unsettling. Where the evidence is conflicting, we have often said we will not disturb the verdict.

We do not think the Statute of Frauds has any application in this case, nor is it like the case of Hite v. Wells, 17 Ill. 88 . In that case, the plaintiff counted upon the liability of Lyle, and not upon an original promise from Hite to Wells. The court said the plaintiff should declare upon the new contract.

In this case the undertaking is not collateral, but is declared on as the original undertaking of defendant himself. The defendant did not assume, as we understand the testimony, to answer for Gruis, but his main purpose and object were, to subserve a purpose of his own. 2 Pars. on Con. 305.

As was said in Nelson v. Boynton, 3 Metc. (Mass.) 396, where the leading object of the undertaker is to promote some interest of his own, the promise is not within the statute, although its effect is to release or suspend the debt of another. Here, the object and purpose of defendant were, to have the plastering speedily finished, that he might rent the building, and thus derive income from it. This was the motive.

The judgment is affirmed.

Judgment affirmed.