
    Michael O’Neil, Resp’t, v. The Hudson Valley Ice Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    1. Contract—Promise por benefit op third person.
    Where by the terms of the contract the defendant reserves the privilege of paying claims against its contractor to the extent of its liability to him, the creditors of "the latter cannot maintain an action against it upon such claims.
    3. Same—Evidence.
    In such case, evidence of communications made by the contractor to the claimants that the defendant would pay them, is inadmissible.
    Appeal from a judgment of the Albany county court upon an appeal for a new trial from a judgment of the city court of Albany. The plaintiff recovered a judgment in the city court and the county court on appeal, and a new trial directed a verdict for the plaintiff, on which judgment was entered, from which judgment the defendant appeals to this court.
    
      George H. Stevens, for app’lt; John A. Stephens, for resp’t.
   MAYHAM, P. J.

This action is brought by the plaintiff to recover for alleged services rendered in filling an ice-house for the defendant.

On the 30th day of December, 1882, Thomas Mullen, agent, entered into a contract in writing with the defendant, in consideration of the sum of twenty-two cents per ton, to scrape, cut, convey and house all the ice necessary to fill the ice-house belonging to the defendant, situate at the corner of Bridge street and Broadway, and when harvest is complete to return defendant’s tools and implements to the dock near the elevator, and to pay all expense from start to finish, except for coal necessary for the engine, and pay the defendant $1.25 per day for what horses he hires of him and to accept seventy-five per cent, of pay for what is harvested weekly, and to do all things subject to what the party defendant shall require. The defendant agreed to pay Mullen twenty-two cents per ton of forty-five cubic feet per ton. The defendant also reserved the right to pay those employed on the contract and keep their time, and as soon as the job is completed to pay the balance of the contract price. The case discloses that the ice furnished amounted at the contract price to $2,200 of which sum the defendant had paid $2,056.98 to the employes, leaving a balance on the contract price due from the defendant of $143.07. But it is insisted that the defendant is liable under this contract to pay the laborers on this job for all the work performed by them, and that seems to be the theory upon which the learned trial judge proceeded in directing the verdict in this case; and that contention is sought to be maintained under-this provision of the contract. “ The party of the second part reserves the right to pay the men on the above contract and keep the men’s time.”

We do not think this contract; taken as a whole, will bear any such construction. It is npt quite clear why this provision was incorporated in the contract; but it is quite obvious that this volition reserved to the defendant was not intended to nullify the other provisions in it, which regulated the price for this work, and obligated Mullen, or the unknown principal whom he represented, “to pay all the expense from start to finish,” and turn the contract into an obligation on the part of the defendant to pay upon a quantum meruit the very expenses which Mullen had contracted to pay, nor did it authorize Mullen in employing the men to perform this work to bind the defendant by any statement made by him to them to pay for their services.

The case is not analogous in principle to that of Kingsbury v. Earle, 27 Hun, 141. That was a case where the father conveyed land to his son, with an express covenant on the part of the son to pay all his father’s debts, and the amount of the debts, and not the nominal consideration in the deed, was deemed to be the actual consideration agreed to be paid by the son. No such agreement was made by the defendant, in this case, by the written contract. Nor does this case come within the principle of the cases cited by the respondent, when a party having money in his hands due to another, pays part 'of the same on the debts of that other, from which a trust may sometimes be presumed in favor of other creditors. Cook v. Moon, 18 Hun, 31, and other cases cited by the respondent on this point. Under this written contract there was no privity between the defendants and the plaintiffs' assignors. They were employed by Mullen, who was only authorized to act under the contract for himself, and not as the agent of the defendant. Nor is the case like that of Lawrence v. Fox, 20 N. Y., 268, that was a case where the defendant agreed to pay a third person for the benefit of the plaintiff. In the case at bar, there was no agreement to pay a third person, made by the defendant, but only a reservation of the privilege by the defendant to pay to the extent of its liability to Mullen. The case is more nearly analogous to that of Lorillard v. Clyde, 122 N. Y., 502; 34 St. Rep., 224, which was distinguished from Lawrence v. Fox, supra. In Wheat v. Rice, 97 N. Y., 302, it was held that the principle of the case of Lawrence v. Fox, supra, should be limited to cases having the same essential facts. Under such limitation it cannot be extended to this case.

We think the trial court erred in admitting the evidence of communications, made by Mullen to plaintiff’s assignors at the time of employing them, that the company would pay them. In doing so he acted without authority from the defendant, and his statements were but hearsay, and should have been excluded on the objection of the defendant. Happy v. Mosher, 48 N. Y., 313.

There was perhaps a sufficient dispute upon the facts in this case to have justified sending it to the jury. But as both parties called upon the court to direct a verdict, and the defendant made no request to submit that dispute to the jury, that question cannot be raised here. Dillon v. Cockcroft, 90 N. Y., 649.

We think for the reasons hereinbefore stated the trial court erred on the trial of this action, and for that reason a new trial should be ordered in the county court.

Judgment reversed, and a new trial ordered in the Albany county court, costs to abide the event.

All concur.  