
    Thorn & Gorrie v. Roman.
    
      Action on Common Count, for Work and Babor Done.
    
    1. Implied promise to pay for work and labor. — A promise by defendant to pay for work done by plaintiffs in building an extra foundation wall, and putting up a stud partition, to strengthen an old wall in a store-house belonging to him, can not be inferred by the jury from proof of these facts: that defendant had leased his two adjoining storehouses to a third person, for a term of years; that the lessee agreed, in part payment of rent, to pull down and reconstruct the buildings at his own expense, and afterwards employed plaintiffs to do the necessary work, according to specifications furnished by an architect; that during the progress of the work, according to the specifications, it became necessary to insert supporting joists in a wall left standing, but defendant objected to this, on the ground that the wall would thereby be weakened and rendered unsafe, and suggested to the lessee’s agent, who was superintending the work in the absence of his principal, that the matter be referred to another architect, “to say what would be a safe way to have the work done”; and that the work was afterwards done by plaintiffs as suggested by th^ architect so called in.
    Appeal from tbe Circuit Court of Montgomery.
    Tried before tbe Hon. John P. Hubbard.
    A. A. Wiley, for appellants.
    Tompkins & Troy, contra.
    
   SOMEEVILLE, J.

Tbe suit is for work and labor alleged to have been done by plaintiffs, at tbe defendant’s request, in building an extra foundation wall, and putting up a stud partition, to strengthen an old wall of a store-bouse in tbe city of Montgomery, owned by tbe defendant. There is no controversy as to tbe fact, that tbe work was done by tbe plaintiffs; nor that it was worth tbe amount charged. Tbe only issue is, whether it was done at tbe request of tbe defendant, expressed or implied. If there was no evidence from which a jury could infer such a request, or implied promise by defendant to pay for tbe work, tbe charge of tbe trial court, instructing tbe jury to find for tbe defendant, is free from error.

Tbe whole case is this: Tbe defendant owned two storehouses. He leased them to one Poliak for a term of five years, who, as lessee, agreed to pull down and reconstruct the buildings at bis own expense, by way of part compensation for rent. Poliak made a contract with the plaintiffs to do this work, and it was reduced to writing. According to tbe plan and specifications of tbe architect, it was necessary to put certain joists in the wall left standing on tbe south side. Tbe defendant, Eoman, being advised by an architect, that this would render tbe wall unsafe by weakening it, objected to tbe insertion of these joists on this ground, and stopped the prosecution of tbe work. Tbe defendant, thereupon, suggested to one Clapp, who was superintending the work for Poliak, with tbe view of seeing that it was properly clone, that the matter be referred to one Anderson, an architect, “to say what would be a safe way to have the work done.” The referee suggested the extra-foundation and stud partition which was afterwards adopted by the plaintiffs. Clapp agreed to this in behalf of Poliak, who was absent at the time from the city; but he testifies that he was without authority to bind his principal. The defendant, being advised, made no objection to the adoption of this change.

We see nothing in these facts which would authorize the inference by a jury of any promise by Homan to pay for this work. The premises for the period of the lease belonged to Poliak, not to him. The plaintiffs made their contract to build with Poliak. They credited him for the agreed price of the stores. They neither contracted with, nor had any right to expect anything from the defendant, as pay for such work. No promise to pay for the extra work certainly can be inferred from the objection interposed by defendant to the insertion of the joists in the wall. If this injured the wall, or weakened it, he had a right to object. The only matter referred to' Anderson for arbitration was whether this objecwas well founded, and if so, what would be a safe way to have the work done. This necessarily implied that Poliak, not the defendant Homan, was to be looked to as responsible for the work. And the evidence shows that Poliak, or his agent Clapp, did pay as much as one hundred and thirty dollars of the amount, for which the plaintiffs gave credit.

The charge of the court was free from error, and the judgment is affirmed.  