
    Harvey J. Hurd and James T. Hurd, Respondents, v. George Wing, Appellant.
    
      Qonveyance of land io one who agrees to pay for mates'ial used by the grantors thereon—where the material was bought and used by a grantor who had no title to the land the agreement is not enfoi'cible — the relation of principal and surety is created by such a contract, if enforcible.
    
    In an action brought by a firm of lumber dealers against George Wing, to recover for lumber sold to Edson B. Sawdy, it appeared that in November, 1895, the defendant conveyed certain premises to Edson B. Sawdy and that Sawdy agreed to. erect two houses thereon; that, on January 13, 1896, Sawdy conveyed the premises to Ms wife. May 1, 1896, Sawdy abandoned the contract and on May 6, 1896, he and Mrs. Sawdy reconveyed the premises to the defendant, upon the latter’s agreement “to assume and pay all valid claims for labor and for all material used by first parties for the construction of houses and buildings thereon and to save and protect first parties harmless from each and all said claims or demands thereon due and to grow due and owing.”
    The lumber for which the defendant was sought to he held liable was sold to Mr. Sawdy and was used in the construction of the buildings. It did not appear that any part thereof was furnished after Mrs. Sawdy became vested with the title to the premises, or that she ever undertook the payment of the plaintiffs’ claim or that the premises were subject to a lien for the same.
    
      Reid, that, so far as the defendant’s agreement to pay the plaintiff’s claim was made with Mrs. Sawdy, such agreement did not inure to the benefit of the plaintiffs, as it did not appear that Mrs. Sawdy was liable to the plaintiffs for such claim;
    That, so far as tfie defendant’s agreement was made with Mr., Sawdy, such agreement was unenforcible by the plaintiffs, for- the reason that it did not appear that there was any consideration moving from Mr. Sawdy to the defendant.
    
      Semble, that the effect of the defendant’s assumption of the claim, if enforcible by the plaintiffs, was to make the defendant the principal debtor and Mr. and Mrs. Sawdy the sureties.
    Appeal by the defendant, George Wing, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 8th day of January, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Tabor, for the appellant.
    
      J. W. Russell, for the respondents.
   Spring, J.:

The plaintiffs, who were copartners engaged in the business of lumber dealers commenced this action to recover for lumber and building materials' alleged to have been sold to Edson B. bawdy for which it is claimed the defendant became liable to pay.

It is urged by the appellant that the complaint fails to state a cause of action. It alleges the sale of the lumber to Edson B. Sawdy; that it was delivered upon premises owned by said bawdy ■ and his wife; that bawdy and the defendant have paid of said indebtedness $1,025, the entire account being $1,345.91. It further alleges that on the 6th day of May, 1896, bawdy and his wife conveyed the premises to the defendant and a contemporaneous agreement was entered into, whereby the defendant agreed to pay the incumbrances upon the premises and also “ to assume and pay all valid claims for labor and for all material used by first parties for ' the construction of houses and buildings thereon and to save and protect first parties harmless from each and all said claims or demands thereon due and to grow due and owing.” An approximate statement'of these claims was attached to the contract, that of the plaintiffs being fixed at $315. While the complaint does not in terms allege that the materials furnished by the plaintiffs went into the construction of these buildings, yet, in conjunction with the contract, that is its plain meaning. This interpretation is further made clear by the defendant’s answer, which alleges that by the contract referred to he became liable for whatever lumber and material sold to bawdy by the plaintiffs were used in the construction of the said houses, and further admits the delivery of said lumber, as alleged in the complaint, and the payment of $1,025 to them, but avers that such sum paid nearly, if not fully, for all the lumber so used. It is apparent, therefore, that the real controversy betweén the parties arises over the quantity of lumber used in said dwelling of that delivered by the plaintiffs.

It is somewhat unfortunate that the case comes to us with a very imperfect and unsatisfactory record. ■ It appears, however, from the meagre facts disclosed that, in November, 1895, the defendant was the owner of the premises referred to in the complaint and con. veyed the same to Edson B. bawdy, and about the same time entered into an agreement whereby bawdy agreed to erect two houses upon the premises, each to cost not less than $6,000. On the 13th of January, 1896, Sawdy conveyed this property to his wife, and about the first of May abandoned his contract and he and Mrs; Sawdy executed a conveyance of. the same to the defendant, as already mentioned.

There is nothing whatever in the record to show that Mrs, Sawdy was in any way liable to.the plaintiffs for the debt sued upon. The lumber was sold to her husband, and there is nothing in the evidence indicating even that any part of it was furnished after Mrs. Sawdy became vested with the title, or that in the conveyance to her, or by any independent agreement, she assumed to pay this demand, or that her premises were even subject to a lien for the same.

Upon the motion for a new trial the learned trial justice, in his opinion, states that Mrs. Sawdy “ undertook tó pay for the material sold by the plaintiffs to her husband by furnishing to the defendant the means to pay it.” If there was any evidence introduced.on the trial justifying that statement, it is to be regretted that it is not com tained in the record. We must, however, be controlled by the evidence in the appeal book, and that is barren of proof on that subject. It is not enough that there was a consideration from Mrs. Sawdy to the defendant to support this agreement whereby he assumed the payment of the claims for lumber and materials, but in order to make this inure to the benefit of the plaintiffs; Mrs, Sawdy must have been liable to them. This is the doctrine of Lawrence v. Fox (20 N. Y. 268); Townsend v. Rackham (143 id. 516); Embler v. Hartford Steam Boiler Ins. Co. (158 id. 431,436), and a long line of kindred cases.

It may be, in view of the fact that the only question litigated was as to the value of the lumber furnished by the plaintiffs and used in the Construction of the said houses, that there was proof to show that Mrs. Sawdy had undertaken the payment. of this debt, but there is nothing in the record which sustains that position.

In the second place, the record does not show that there was any consideration from Sawdy, the husband, to the defendant. The title was in Mrs. Sawdy, and she could pass a good title, without ■ associating her husband with her in the conveyance.

It is urged by the appellant, in view of ■ the clause quoted from the contract, that the agreement between the defendant and the Sawdys was one of indemnity only. This is not the construction to be given to agreements of this kind. If the defendant, upon taking the title to these premises, assumed the payment of this claim with others as part of the consideration of the conveyance, he became the principal debtor and the grantors the sureties. (Clark v. Howard, 150 N. Y. 232; 1 Wilt. Mort. Forec. § 223.)

It is to be deplored that there must be a retrial of this small case, which met a like fate when in this court on a former appeal (56 App. Div. 595), but as the record is presented to us, we see no escape from the legal objections to a recovery to which we have adverted.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

McLennan, Williams, Hisoook and Davy, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the facts having been examined and no error found therein.  