
    Harvey J. Hurd and James T. Hurd, Appellants, v. George Wing, Respondent.
    
      Agreement by a grantee cf premises to pay for lumber used upon the premises — consideration— when the person supplying the lumber may enf orce such agreement — money paid on account will be applied on the oldest items.
    
    January 13,1896, Edson B. Sawdy conveyed to his wife, Emma A. Sawdy, premises which had been conveyed to him in November, 1895. Upon .the original instance and request of the said Edson B. Sawdy a firm of lumber dealers sold and delivered upon the premises between December 9,1895, and March 26,1896, a quantity of lumber. Of the total amount, lumber of the value of $705.87 was used in the construction of buildings upon the premises after they had been conveyed to Mrs. Sawdy, and the evidence was sufficient to sustain a finding that the lumber was so used with the consent of Mrs. Sawdy.
    May 6, 1896, when the balance due to the lumber dealers amounted to $320.91, Mrs. Sawdy and her husband executed a warranty deed of the property to George Wing, and in purported consideration thereof and as part of said transaction the latter executed an agreement whereby he agreed to “ assume and pay all valid claims for labor and for all material used by first parties (the Sawdys) 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.” Annexed Was “ an approximate statement of the claims for labor and materials furnished * * * and * * * intended to be assumed by second party,” included iti which was the sum due to the lumber dealers.
    In an action brought by the lumber dealers against Wing to recover the balance of their claim, the evidence tended to establish that at the time the premises were conveyed to him the lumber dealers could have filed a mechanic's lien against the premises.
    
      Eeld, that the plaintiffs, so far as théy claimed under Edson B. Sawdy, were not entitled to recover, as at the time, the premises were conveyed to the defendant, the said Edson B. Sawdy did not have any interest in the premises which would serve as a consideration for the defendant’s agreement to pay the plaintiffs claim;
    That the plaintiffs, so far as they claimed under Mrs. Sawdy, were entitled to recover; that the fact that at the time the defendant made the agreement to pay the plaintiffs’ claim, the plaintiffs might have filed a mechanic’s lien against the premises, considered in connection with the fact that Mrs. Sawdy executed a warranty deed to the defendant under which she could be called upon to protect the defendant against, the mechanic’s lien, gave her such an interest in having the plaintiffs’ claim paid as entitled the plaintiffs to enforce the agreement made by Mrs. Sawdy with the defendant for their benefit;
    That the fact that the plaintiffs did not avail themselves of the right to file a mechanic’s lien did not affect their right to enforce the defendant’s agreement.
    Money paid upon account of a bill consisting of a number of items will, in the absence of an agreement to the contrary, be applied on the oldest items.
    
      Appeal by the plaintiffs, Harvey J. Hurd and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 16th day of September, 1903, upon the report of a referee reversing a judgment of the Municipal Court of the city of Buffalo, in favor of the plaintiffs, and dismissing the plaintiffs’ complaint upon the merits.
    
      J. W. Russell, for the appellants.
    
      Charles F. Tabor, for the respondent.
   Hiscock, J.:

This action was brought by plaintiffs to recover from defendant an unpaid balance for lumber claimed by them to have been delivered to Edson B. Sawdy and Emma A.,Sawdy. They base their right to recover upon an agreement between defendant and said Sawdys, whereby it is alleged that defendant, for a good consideration, agreed to pay certain debts for which the Sawdys were liable and which included the balance in question due to plaintiffs.

The learned referee before whom the case was last tried dismissed plaintiffs’ complaint upon the ground that in the case of Edson B. Sawdy no sufficient consideration moved from him to defendant to support the agreement, and that in the case of Emma A. Sawdy there was no such liability upon her part for the indebtedness due plaintiffs as would permit them to take advantage of the agreement made by defendant within the principles laid down in the case of Lawrence v. Fox (20 N. Y. 268) and other similar decisions. We think that this view was based upon error and that the judgment must be reversed.

Although this case involves a small amount of money and comparatively few and simple questions, it seems to be difficult to reach a result upon the trial thereof so sustained by the law and the facts that it can be affirmed upon review, The case has been three times tried and this court has been compelled to reverse for error two judgments secured by plaintiffs upon such trials. Such prior appeals are reported respectively in 56 Appellate Division, 595, and 76 Appellate Division, 506. While we shall have occasion hereafter to refer to the opinion delivered upon the last appeal, it is not necessary to the consideration of the questions now presented that we should at length discuss the former opinions delivered by this court.

Prior to December, 1895,, plaintiffs were' lumber dealers in the city of Buffalo. In November of that year the defendant Wing and his wife conveyed to Edson B. Sawdy the premises referred to in this litigation and situate in Buffalo. • January 13, 1896, said grantee executed a conveyance of the same premises to Emma A. Sawdy, who was his wife, and that conveyance was put on record the same day. Upon the original instance and request of Edson B. Sawdy plaintiffs sold and delivered upon the premises in question between December 9,1895, and March 26,1896, lumber of the value •of $1,345.91. Upon the trial it was conceded that all of the lumber was used in the construction of two houses Upon the premises except certain specified items which were estimated by various witnesses to be of various values ranging in the aggregate from $32.27 to $285.32. Of the total amount there seems to be no dispute that lumber of the value of $705.87 was delivered, and, subject to the shortage above mentioned, went into the construction of the houses after the execution of the deed by. Sawdy to his wife. By payments made from time to time by the defendant the total indebtedness for this lumber had been before May 6, 1896, reduced to a balance of $320.91.

May 6, 1896, Mrs. Sawdy and her husband executed a warranty deed of the property to the defendant Wing, and in purported consideration thereof‘and as part of said transaction the latter executed back an agreement whereby in substance, amongst other things, he agreed to “ assume and- pay all valid claims for labor and for all material used by first parties (the Sawdys) 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.” Annexed was “ an approximate statement of the claims for labor and materials furnished * *. * and * * * intended to be assumed by second party ” (Wing), and which included the sum of $375 due to plaintiffs, and which item undisputedly was intended to represent the same indebtedness sued for here.

It is upon this agreement that plaintiffs base their action,

•As already stated, the plaintiffs were defeated upon the trial upon the ground that, so far as Edson B. Sawdy was concerned, the defendant received no consideration for his agreement, and that so far as Emma A. Sawdy was concerned, she was not in any such manner liable for or legally interested in the payment of the indebtedness as would enable plaintiffs to take advantage of defendant’s contract with her.

We think this disposition was correct so far as the husband was concerned. Apparently he parted with all of his interest in this land by his conveyance to his wife, and at the time of the deed to defendant had no transferable interest which might serve as a consideration for the purported agreement. It is true that upon the trial plaintiffs’ counsel attempted to take a position inconsistent with his pleadings and with the general trend of the evidence by showing that prior to 1903 Mrs. Sawdy never knew of, accepted or acted under the deed from her husband. This evidence was, however, ruled out.

It is in connection with Mrs. Sawdy’s relations to the indebtedness due to plaintiffs that we think the referee fell into error. Without attempting to decide whether a trial court might have found upon a question of fact that plaintiffs could have maintained an action against Mrs. Sawdy personally for the balance due them when the deed to Wing was executed, we think the evidence tended to establish that at said date they could have filed a mechanic’s lien for said balance against the property which she was conveying, and that such right, in connection with the other facts, furnished a sufficient basis for defendant’s promise to pay and protect her from said indebtedness.

The deed was executed May sixth. The payments upon the total bill, in the absence of some contrary arrangement, must be assumed to have been applied to the oldest items. There was evidence that within ninety days next' preceding the date of defendant’s agreement sufficient lumber had v been delivered and put into the houses to make up the balance claimed.

We think, further, that certainly a trial court might find as a matter of fact that this lumber was so put into the erection of these houses, after Mrs. Sawdy took title, with her knowledge and consent, that a mechanic’s lien would lie against her property therein.

It is true, as suggested by the learned referee, that there is no legal objection to a husband building upon his wife’s land if he so desires, and that she does not necessarily become liable to pay for such building. We think, however, that it would 'not be violent to assume, under ordinary circumstances and in the absence of evidence indicating the contrary, that a wife having the title to and possession of .real estate upon which are being completed buildings in the process of erection at the time of the conveyance to her by her husband is to be charged with knowledge of such construction, and that materials are being used for such purpose. In this case, however, evidence was either introduced or offered directly tending to show Mrs. Sawdy's knowledge of the fact that lumber furnished by plaintiffs was being used for her benefit in the completion-of the houses in' question. The very agreement upon which plaintiffs base this action, and to which she was a party, admits and recites in substance that there was a balance due plaintiffs of $375 for material used by her and her husband in the construction of houses and buildings upon the premises. The order upon defendant to pay plaintiffs, dated January 15, 1896, and marked Exhibit 2 for identification, and which in our judgment was erroneously ruled out, was signed by Mrs. Bawdy, as well as her husband, and directed the payment of a certain sum “in consideration of lumber and building material furnished by Hurd Bros, to me for use in said building,” referring to the buildings in question. It seems to us, therefore, that it might have been found that at the time of the conveyance to Wing plaintiffs were entitled to file a mechanic’s lien for the balance due them for materials.

The conveyance to defendant was a warranty deed, and under it Mrs. Bawdy could have been called upon to protect and defend him against enforcement of such lien upon the property conveyed, and the agreement made by him to pay and discharge said claim was one of the proper methods to relieve her from the liability to which she otherwise might have been subjected upon her covenant of warranty. We think that her interest in having the indebtedness paid was of a degree and character sufficient .to make defendant’s agreement for the-benefit of plaintiffs legal and binding and gave them a right to enforce the same. (Embler v. Hartford Steam Boiler Ins. Co., 158 N. Y. 431, 436.)

It is suggested further in behalf of defendant, that the time has long since elapsed within which plaintiffs might file a lien and that they never did so file the same, and that this is an answer to plaintiffs’ contention in this respect. We do not, however, regard this as a sound View. Defendant’s agreement is to he viewed in the light of the circumstances as they existed at the time it was made and to be decided by the interest which Mrs. Sawdy then had in the payment of plaintiffs’ indebtedness. If she then was liable for or interested in its payment within the rules governing this subject, plaintiffs are entitled to enforce the agreement made for their benefit. They have not lost such right because either in reliance upon the agreement or for some other cause, they have not resorted to the proceedings by mechanic’s lien. Their right to recover rests upon the obligations existing from Mrs. Sawdy to them at the time she secured the agreement from defendant to protect her against her obligations and liability.

We do not believe that the agreement made by defendant to protect her against this indebtedness, if valid at the time it was made and for which presumably credit was given to defendant in the sale of the house, has been destroyed and canceled simply because the plaintiffs for some reason not explained in. the evidence have refrained from filing their lien". If it were profitable so to do in the absence of evidence bearing upon the subject, it would be quite, reasonable to conjecture that they have refrained from enforcing their lien for the very reason that this agreement was executed by the defendant to pay their indebtedness.

We think that the pleadings as a whole permit plaintiffs to urge the view of this case discussed. It is true that in their original complaint they alleged that plaintiffs sold and delivered to the said Edson B. Sawdy upon the premises above described and at his special instance' and request,” certain goods, etc. This court, however, in its former decision (76 App. Div. 506) held that “ 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 Sawdy 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 between /the parties arises over the quantity of lumber used in said dwelling of that delivered by the plaintiffs.” We think that it was not inconsistent with or outside of the pleadings, construing them as a whole, for plaintiffs to show that while the lumber in the first instance was sold and delivered upon the engagement of the husband Sawdy, nevertheless some of it was so used in the construction of the houses after Mrs. Sawdy became the owner thereof that she had such an interest in the payment therefor as would furnish sufficient support for defendant’s agreement to pay the unpaid balance.

In accordance with the views expressed, we thin'k that the judgment must be reversed and a new trial granted.

All concurred.

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