Schuster v. Kansas City, St. Joseph & Council Bluffs Railroad

"Wagner, Judge,

delivered the opinion of the court.

This was an action commenced by the plaintiff against the . defendant, wherein the amount .claimed to be due was the sum of thirteen hundred dollars.

From the record it appears that plaintiff was a merchant, and that Parker & Wills, who were contractors to do certain work for the defendant, made an arrangement with him, by which he was to let their laborers have goods on their orders, lie did let the laborers have goods tó the amount claimed in the petition. Subsequently, Parker & Wills failed to pay , their laborers; and they gave notice in accordance with the statute, whereby defendant became liable to them for thirty days’ wages.

*291 Under the evidence and ruling of the court a verdict was found dor plaintiff, for one hundred and eighty-four dollars and thirty-five cents.

The arrangement entered into by the plaintiff with Parker and Wills, by which plaintiff paid that firm’s laborers by orders out of his store, devolved no responsibility on the defendant to see that plaintiff was paid. It was a contract between those parties, to which defendant was an entire stranger and for the goods furnished according to its terms,it could not be made liable; and so the jury must have found, when the greater portion of plaintiff’s claim was rejected. But under the notice given to the defendant, the company was liable to the laborers for thirty days’ wages, and there was evidence submitted going to show that when the company paid the J hands under this liability, the payment was made on pay rolls which had been kept by the foreman, and that those rolls showed certain amounts on some of the claims Which had been paid by plaintiff; that these amounts which had been paid by plaintiff were deducted by the paymaster as so much received by the parties, which was due and payable to plaintiff and that the settlement was adjusted on this basis. It was for these sums so deducted by the defendant’s paymaster, that the jury found their verdict.

There was some contradictory evidence, it is true, introduced by the defendant, but with that we have nothing to do. The jury passed upon it and that concludes us.

The simple fact that defendant, in paying the hands, deducted from their accounts what was due to the plaintiff would not, of itselfj raise an assumpsit in his behalf. If the laborers or hands had refused to accede to the arrangement, they • would not have been prevented from maintaining their action against the defendant for the balance withheld for plaintiff’s benefit. But it appears, plainly enough, that the parties to whom the debts were owing acquiesced in and agreed to the manner in which they were paid off. The parties whose claims were thus, paid were the witnesses by whom plaintiff mainly proved the facts. Under these circumstances there *292 was an implied undertaking, that defendant’ would pay the respective amounts deducted to the plaintiff j and it lias been frequently held in this court, that a promise made for the benefit of a third person, may be sued upon by such person.

The judgment should be affirmed;

the other judges concurring, except Judge Sherwood, who is absent.