
    Greenough et al. v. Eichholtz et al.
    On an action to recover a balance due for printing the paper book of a case in the supreme court, the plaintiffs offered evidence to prove that, after printing a certain portion of the book, under a contract with another party, they refused to proceed until they were paid, as the work progressed; that the defendants, who were counsel for the parties for whom the book was being printed, thereupon went to the plaintiffs and one of them said that the plaintiffs should go ahead, and that they, the defendants, would see that the plaintiffs got the balance of the money; that the other defendant nodded acquiescence to this agreement and the plaintiffs, relying on the promise, finished the book. This was denied by defendants. Seld that, if plaintiffs’ evidence was believed, there was a, joint original undertalcing on the part of the defendants to pay for the balance due, and not an agreement to answer the debt of another, which, under the Act of April 26,1855, must be in writing.
    May 23, 1888.
    Error, No. 413, Jan. T. 1888, to C. P. Northumberland Co., to review a judgment on a verdict in favor of the plaintiffs on an appeal from a justice of the peace at Eeb. T. 1888, No. 15. Trunkey, J., absent.
    This case arose on an appeal by J. E. Eichholtz and D. L. Sollenberger, trading as J. E. Eichholtz & Co., from the judgment of a justice of the peace in favor of E. W. Greenough and George B. Penn, defendants. The pleas were non-assumpsit, payment and payment with leave to put special matter in evidence.
    The facts appear by the following charge of the court by Bockefeller, P. J.:
    
      “ This is an action brought by J. E. Eichholtz and D. L. Sollenberger, lately doing business under the firm name of J. E. Eichholtz & Co., plaintiffs, v. E. W. Greenough and George B. Penn, defendants, in which the plaintiffs seek to recover for work and labor performed by them for the defendants, at their instance and request. It seems that, in 1878 or 1879, John O’Neil and Peter McManus were prosecuted in this court for the crime of murder. After their conviction, the defendants came to the conclusion to remove the case to the supreme court of this state. That necessitated the printing of paper books, of the proceedings of the court below,, containing the evidence, charge of the court, etc. These books are generally printed from manuscripts furnished by counsel of the party removing the same to the supreme court. But counsel do not, in making up manuscripts and taking them to the printers, make themselves personally liable for the payment of the books, but are simply treated as agents, the party alone being liable, unless there is some special contract or agreement, on the part of counsel, that they are to be personally liable, and in consideration of such promise the work is done. [You have heard the evidence in this case as to how the work was originally commenced. Gen. John K. Clement was of counsel with the two defendants in this case, and it seems that he went to the plaintiffs, who were printers, and employed them to do the work. Just what the contract was with Gen. Clement is not perhaps material in this case; it is enough to know that the books were taken to the plaintiffs and that they agreed to go on and print them under certain terms. Now, it is alleged, on the part of the plaintiffs, that, after they had progressed to a considerable extent in printing of these paper books, the money that they were promised for the work was not forthcoming, and they were fearful that if they went on and printed the books and delivered them they would never receive their pay. They then refused to go on further with their work. Then, they allege, that E. W. Greenough and Geo. B. Renn, the defendants in this, came to them and agreed that if they would go on and complete the work, so that they would have the paper books before the supreme court, at the time of the argument, they would see that they were paid for. It is alleged that they, the defendants, agreed, in consideration of the finishing of the work, that they would, become personally responsible and see that the plaintiffs were paid. Now I do not know of any law that would prohibit the parties from making arrangements or contracts of this kind that would be binding.] [3]
    “ This action was brought against Mr. Greenough and Mr. Renn jointly, and, in order to recover, the plaintiffs must prove that a contract was made by them jointly; they cannot recover in this case by proof that the contract was made by one. The plaintiffs must prove the contract as alleged, and the suit, as brought, is against the defendants jointly, ana, therefore, it is incumbent on the plaintiffs to prove a joint contract. On the 26th of April, 1855, the legislature of this state enacted a law which, amongst other things, provides as follows: ‘No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some person by him authorized.’ So that the general rule is, as laid down by the supreme court, that a parol promise to pay the debt of another is within the statute, where it is collateral to the continued liability of the original debtor. Now, if the work in question was done and completed under the original contract, made with Gen. Clement, and Mr. Greenough and Mr. Renn simply promised or agreed to be responsible for tbe payment of tbe contract price, that is, to answer for the debt or default of Gen. Clement or McManus or O’Neil, the defendants would not be liable, because the promise was not put in writing. The object of this law is to prevent frauds and perjuries, so that a man cannot be bound to pay the debts of another person in which he has no interest whatever, unless proof is established by some writing signed by himself or some person authorized by him to sign it. Now, gentlemen of the jury, there is a question of fact in this case which must be determined by you from the testimony. The evidence is contradictory, and, in cases of this kind, the jury must endeavor to ascertain the facts. This is a case in which these parties cannot agree; they cannot settle it between themselves, and you, gentlemen of the jury, are called upon to settle it for them, and it is your duty to be governed by what you believe to be the weight of the testimony in the case. It is the province of the jury in all cases to pass upon the credibility of the witnesses. Because witnesses disagree and contradict each other, it does not always follow that they are guilty of the crime of perjury. Men may forget and they may misunderstand each other, and we are not to impute perjury to any one, but endeavor to reconcile the testimony without so doing, if possible. [As I understand the case, the plaintiffs allege that the work, for which they claim in this action, was not done under the contract originally made with Gen. Clement. They admit that a contract was made originally with him for the doing of this work, but, as I have already remarked, after they had partly completed the work they came to the conclusion, for some reason, that they would not finish it. You heard their testimony upon that subject and it was doubtless because they were fearful they wotild never get their pay. They allege they were not paid up to the time they made the subsequent contract, in accordance with the original agreement, and that the work was finished, not under the contract with Gen. Clement, but under a new agreement made between them and Mr. Greenough and Mr. Renn, the two defendants in this case. So that you see it is not a case of a promise by one person to answer for the debt or default of another, and, if you find the facts as stated, then the case would not be within the Act of Assembly which I have just read.] [4] Parties may make their own contracts upon a sufficient consideration by which they may bind themselves to pay for work and labor performed for themselves, and such contract need not be in writing.
    “ Here I will refer you to what was substantially stated by Mr. Eiehholtz. It seems that it was alleged at the time the work was stopped that there were some $16 in the hands of Gen. Clement that had been collected from some parties for the purpose of defraying the expenses of the work already referred to. Mr. Eiehholtz said: £ Whilst the firm of Eiehholtz & Co. was still in existence, Gen. Clement came to us rather late; it was only a few weeks to do such a big job, and I did not care about it, but we made a bargain, he guaranteed that we would be paid and we went ahead on it; then we were paid some money, on account, at different times; then Sollenberger went for some more money, and there wasn’t any forthcoming ; we were under heavy expenses, and we just stopped until Eenn and Greenough came in the office and said if we would get $16 more out of Gen. Clement that they would see that we got the balance of the money; we said that would be a bargain; we got that money from Gen. Clement and we went on with the book then, and finished it on that guarantee.’ Then he said if the defendants, Greenough and Eenn, had not called upon them that they would not have completed the woi'k. Then, on cross-examination by Mr. Greenough, Mr. Eichholtz said: £ Q. What were the words of the guarantee? A. You and Mr. Eenn came in together; Eenn and I did the talking, and of course he said that if we would get $16 more from the General we should go ahead, and you would see it paid.’ It is important that you should recollect the testimony in determining whether there was a joint agreement on the part of Greenough and Eenn. It seems that Mr. Eenn did the talking, and Mr. Eichholtz goes on to say, in answer to a question put by Mr. Greenough on the trial: £ Eenn said we should go ahead and yon would see it paid. I looked at you [meaning Mr. Greenough, as I understand it]. I do not remember the exact language, but you [meaning Mr. Greenough, as I understand it] nodded and acquiesced.’ Then the question was put: £ How long did he say you should go ahead ? A. Finish the book, of course, I am sure of that; I do not recollect of you or Eenn saying anything more about where the money was* to come from.’ Now this is substantially Mr. Eichholtz’s testimony, but you will recollect all he said both on his examination-in-chief and cross-examination. Mr. Eichholtz then testified that they went on and finished the book, and they were sent to Harrisburg where the supreme court was sitting at that time. [That, you will recollect, was about June, 1879, and Mr. Eichholtz states that, after finishing the books and allowing all credits, the balance due is the sum of $70.80. If the plaintiffs are entitled to recover, it would be for the amount due, together with interest from the time this suit was brought.] [5]
    
      “ Now, gentlemen of the jury, in order to determine whether the defendants are liable or not, you should carefully consider the testimony on the part of the defendants. The principal testimony is that of Mr. Greenough, whom you heard state on the witness stand that he never made any promise either by himself, or in connection with Mr. Eenn, to become personally liable, to the plaintiffs in the case, for the work of printing and finishing the paper book as alleged by them.”
    The defendants presented, inter alia, the following points:
    “1. Counsel for defendants respectfully pray the court to charge the jury that this is an action ex contractu against the two defendants jointly, and that, as the plaintiffs themselves have given in evidence that the alleged contract was made by one of the defendants alone, without showing that he had authority to bind the other, and that the work was done, etc., upon the credit of one of the defendants alone, the plaintiffs are not entitled to recover in this action, and their verdict must be for the defendants. Ans. If the facts are found as stated in this point it is correct. Whether the contract was made by one of the defendants alone or by them jointly I leave to the jury to determine from the evidence in the case.” [1.]
    “4. The plaintiffs having themselves shown that they contracted with Gen. Clement to print the entire paper books, in the cases of Peter McManus and John O’Neil, and they having, in pursuance of that contract, commenced the work and carried it forward, any engagement or agreement of guarantee, on the part of the defendants in this case, during the progress of the work, would have been an assumption to pay the debt of another, and therefore, under the statute of frauds and perjuries, would have had to be in writing in order to bind the defendants in this case. Ans. I answer this point as requested, but leave it to you to determine whether the work for which the plaintiffs now claim to recover, was done under the original contract with Gen. Clement, or whether, after the work was stopped, under that contract, the same was finished under a contract, made by the defendants jointly by which they agreed to pay for it.” [2.]
    
      The assignments of error specified, 1, 2, the answers to defendants’ points, quoting them; and, 3-5, the portions of the charge included within brackets, quoting them.
    
      J. N. Hill, with him E. W. Greenough, for plaintiffs in error.
    There was no joint contract of the defendants. 1 Add. Cont. pp. 1 and 2; Brown v. Finney, 53 Pa. 373; and Miller’s Ap., 13 W. N. C. 233.
    Every loose conversation is not to be turned into a contract, the parties may seem to agree. Spencer v. Colt, 89 although Pa. 314.
    Testimony of the unexpressed motive, intent or belief is inadmissible; and the thoughts of one party to a contract cannot be proved to bind the other. Juniata Building Association v. Hetzel, 103 Pa. 507, 512; Cullmans v. Lindsay, 114 Pa. 166; Cake v. Bank, 116 Pa. 264. And yet Eichholtz was allowed to say that if the plaintiffs had not guaranteed to pay for the work, it would not have been performed. The word used is “ guarantee.”
    The promise was within the- statute of frauds. The question of a new consideration is unimportant. A new consideration for a new promise is indispensable without the statute, and if a new consideration is all that is needed to give validity to a promise to pay the debt of another, the statute amounts to nothing. The question always is, what was the promise, not what was the consideration. Maule v. Bucknell, 50 Pa. 39; Shoemaker v. Kunkle, 5 Watts, 107.
    To prove a change of relation, so as to take a case out of the statute of frauds, it must be by clear and indubitable evidence. Eshleman v. Harnish, 76 Pa. 97; Haverly v. Mercur, 78 Pa. 257; Nugent v. Wolfe, 111 Pa. 471.
    
      G. B. Reimensnyder, and W. A. Sober, not heard, for defendant in error.
    Admissions by silence, as well as by speech, may have a contractual force and may bind the party to whom they are imputable as effectually as if they were spoken. 2 Whart. Ev., 2d ed., § 1142; McClenkan v. McMillan, 6 Pa. 366.
    If one holds himself out or knowingly suffers himself to be held out as a partner, on the faith of which others trust or enter into a contract with the firm, he is responsible, though not a partner. Kirk v. Hartman & Co., 63 Pa. 97.
    What is sufficient evidence to establish a joint liability is a question of fact for the jury. Balliet & Hallman v. Fink, 28 Pa. 266; Clayton v. Seibert, 3 Brewster, 176.
    This case is identical with Jefferson Co. v. Slagle, 66 Pa. 202. See, also, Malone et al. v. Keener, 44 Pa. 107; Oliphant v. Patterson, 56 Pa. 368.
    This case was not within the statute, because: 1st. The preexisting arrangements were abandoned. 2d. There was a complete change of the pre-existing relations of the parties. 3d. The original liability had ceased to exist. ‘4. A new liability was incurred by new parties under an entirely new, and hence original, undertaking. 5. Which new and original undertaking was not a mere promise to pay the debt of another, but a promise to pay the debt of the parties themselves, for the work was now to be done for them and be delivered to them, instead of for and to the original debtor.
    In Maule v. Bucknell et al., the indebtedness was a pre-existing one due by a third party at the time the defendants made the verbal promise. The stock was transferred by the old directors to the new ones upon their promise to pay the existing indebtedness of the corporation and was quite a different undertaking than if they had transferred the stock to the new directors upon their promising to pay for work yet to be done, as in the case at bar.
    In Eshelman v. Harnish, the goods were furnished to a third party and not to the defendants.
    In Haverly v. Mercur, there was no change in the existing relations.
    Oct. 1, 1888.
   Per Curiam,

This was a case for the jury, and was submitted to that body by the court under a full and careful charge. In the face of the testimony of Eichholtz, it is folly to urge that there was not an original undertaking on part of the defendants to pay for the paper book. If his testimony was believed, as it seems to have been, the work was finished on the credit of the defendants; and the undertaking was not to pay the debt of another, for, without their promise, the work would never have been performed.

Judgment affirmed.  