
    John Almond, Appellant, v. William Hart and Charles G. Hart, Respondents.
    
      Promise by an owner to pay an employee of a contractor if he will proceed with the work — it is not within the Statute of Frauds.
    
    A promise made by the owners of a house, which a contractor was engaged in constructing, to workmen employed by the contractor, that if the workmen would proceed with their work the owners would see them paid, is an original undertaking and is not.within the Statute of Frauds, notwithstanding the fact that the liability of the contractor to the workmen is not affected thereby.
    McLennan, J., dissented.
    Appeal by the plaintiff, John Almond, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 27th day of January, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Jefferson Trial Term.
    One Phippin had a contract with the defendants to perform certain work for them in constructing a building. Phippin employed the plaintiff and his assignor, one James'S. Kieff, to work on this job. When they went to perform the labor they met the defendant Charles G. Hai’t, and Kieff testified the following conversation occurred: “ As soon as we got there I met Grant Hart. I asked him if there was money enough left in the job to pay us. I understood that Phippin had it by contract. He said there was money enough and to go ahead and do the work ; that he would see we got our pay. After that we went on and did the work. * * * The defendant said,'
    ‘ There was money enough left in the job to finish it; go ahead'and finish the work ánd I will see that you get your.pay.’ He guaran- • teed our pay there. " * * I remember the time I went to Brownville; I saw Hart as soon as I got there; I talked with him before I did any work; I told him that Phippin had sent us down there and asked him if there was money enough left in the job to pay us ; I meant to ask him if there was money enough left there to do the work ; the idea was to ask whether there was money enough yet unpaid to Phippin on the contract; I wanted to know whether Phippin had overdrawn or not, as his work progressed; and he said there was enough; to go ahead; that he would see we got our pay; both Hart and son talked alike. * * * At different times both' the defendants told us they would pay us; they told us to go on and .do the work; that they would, pay us. * * * Hart told us that he would see that we got our pay; every time I spoke to him about it he said that we would get our pay; to go ahead and do the work and not worry.”
    The plaintiff in his testimony said: “ We commenced at the buildings for awhile, and got to talking, and I spoke to the young man Hart; I asked him how the job was; if there was money enough in the job to finish it; he said there was, and he told us to go tó work and he would see that we got ■ our pay; that was the first day that we were there;. afterwards I saw .William Hart; I had a talk with him several times; he said the job was all right; to keep on to work ;■ he guaranteed our pay ; both of them guaranteed ■our pay. * * * When I first went down there to work I said "that I would not work on the job unless I was sure I would get-my pay for it; Hart told me to go on to work; I don’t recollect any more than what I have said.”
    One of the defendants paid each of these carpenters five dollars to apply on his claim. After the completion of the work, the workmen caused a mechanic’s lien to be filed, and they testified this was done at the request of the defendants, but the lien was never ■foreclosed. Kieff assigned his claim to the plaintiff.
    
      James A. Ward, lor the appellant.
    Brown, Carlisle & Hugo, for the respondents.
   Spring, J.:

A nonsuit was granted, and the plaintiff ■ is, therefore, entitled to the most favorable construction of his case which the evidence warrants. A fair rendering of it is that he and his assignor were ■engaged by Phippin to work on the defendants’ building; that .about the time'they began their work they inquired of one of the ■defendants in respect to their pay; that he told them to go ahead ■and do the work and he" would see them paid. During the progress of the work the other defendant told them to keep to work and not to worry about their pay.

The defendants were the owners of the building which was undergoing construction, and were consequently interested in the prosecution of the work. They assumed to he responsible to these men, and in reliance upon that promise the labor was performed. This was not a collateral undertaking, It was not made dependent-upon Phippin’sfailure to pay;-. It was an unequivocal agreement to become primarily liable, or," at least, was sufficient to carry the case to the jury. In construing promises of this kind, the fact that the promise is made by one having a pecuniary personal interest in the transaction, is often controlling in stamping it as an original undertaking. (Davis v. Patrick, 141 U. S. 479.)

In that case the plaintiff was foreman of a. mining corporation •of which the defendant was the substantial owner. _ The plaintiff ^complained to him that he was not receiving his pay, and the defendant' told him to go on as before and he would see that begot every dollar of his money. “ He (plaintiff) said to Mr. Davis-: if he would, guarantee him to be paid he would continue to work,, and Davis said he would see him paid.” The court in deter- ■■ mining this was-not a promise to answer for the debt of another, and giving significance, to the'interest of the defendant in. the rendition of the services-,: say: “ But cases sometimes .arise in which, though a. third party is the original obligor, the-primary debtor,, the promisor, has a personal, immediate and pecuniary interest, in - the transaction, and is, therefore, himself a party to be benefited by the performance of the promise. In such cases the reason which ' underlies and which prompted this'statutory provision fails,.and the . courts will give effect, to the promise. As said by this court in Emerson v. Slater (22 How. 28, 43): ‘ Whenever the main purpose and object of the pu-omisor is hot to answer for another, but to sub- . serve some pecuniary or business purpose of his own, ■ involving either a benefit to himself or damage to the, other contracting party, his promise is not within, the statute, although it may be in form a. promise to pay the debt of' another, and although the performance of it may incidentally have the effect of extinguisbihg that-liability.’

It is .often difficult to determine whether k promise is within the Statute, of Frauds- or -is an original undertaking. It.has,, however, become the settled law of this Slate that where an owner promises-a .laborer, or .materialman, who .is under contract with the' contractor, that if lie will continue his work, or furnish the materials-contracted for, he will pay him therefor,' this is an independent agreement founded on a new consideration, and the owner is liable for whatever is done in pursuance of this agreement irrespective of -the antecedent contract. (Raabe v. Squier, 148 N. Y. 81; White v. Rintoul, 108 id. 222; Snell v. Rogers, 70 Hun, 462 ; Bayles v. Wallace, 56 id. 428.) In Raabe v. Squier (supra) the plaintiffs had entered into an agreement with contractors to-furnish -materials to be used in the erection of buildings on the-premise's of defendants.. Two installments of these material’s had been delivered, but the contractors-had neglected to make payment ,as stipulated .in the agreement. . The .plaintiffs refused to- furnish, any further materials until they received their pay. With matters-in this suspended state the defendants informed plaintiffs that they wished the buildings finished and that if the plaintiffs would deliver the rest of the materials, “ they would see them paid therefor.” The materials were delivered in reliance upon this promise, and upon the trial the referee dismissed the complaint on the ground the promise was a collateral one and void under the Statute of Frauds. The Court of Appeals in reversing the decision say' at page 87: “ The contractors had neglected to pay the plaintiffs for the material furnished and they refused to deliver more, as they had the right to do. Under such circumstances the promise was made, and it was in reliance upon the promise that the plaintiffs delivered the rest, of the woodwork. The promise thus made was original and founded upon a new consideration, that of the goods. It was beneficial, as we have seen, to the promisors, thus bringing the case within the rule stated by Finch, J., in White v. Rintoul (108 N. Y. 222, 227), in which he says: ‘ Where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the' promisor thereby comes under an independent duty of. payment irrespective of the liability of the principal debtor.’ ”

The test is whether the person sought to be held liable is primarily so, or only in case of the default of another.]" The precise language used is not always significant. It is' the character of the obligation sought to be assumed, and the intentioii of the parties, and the circumstances surrounding the transaction which are controlling. (Clark v. Howard, 150 N. Y. 232; Greene v. Burton, 59 Vt. 423.)

The fact that the liability against Phippin, the contractor, may remain unaffected by the promise of the defendants does not bring this within the inhibition of the statute. (Clark v. Howard, 150 N. Y. 232, 239; Farley v. Cleveland, 4 Cow. 432 ; Elkin v. Timlin, 151 Penn. St. 491.)

The payment of the plaintiff’s claim would necessarily result in the liquidation of any demand he might have against the contractor ; but that has no effect on the defendants, for their liability rests upon a consideration, moving to them, which was the work on their building and for their benefit; and the ulterior effect that their unequivocal promise to pay might have upon the original demand is unimportant, as their promise is also an original one, entirely independent of the one,made with the contractor. The distinction between the two classes of promises is thus stated in Beach on the Modern Law of Contracts': “ The terms original and collateral promise are used to distinguish between the cases where the direct and leading object .of the promise is to become the surety or guarantor of another’s debt, and those where,, although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is to promote some interest or purpose of his own.” (§ 510.)

In this case the plaintiff and Kieff took the precaution to see the owners, relative to their pay; the defendants urged them- to go op with the work, and were explicit in assuring them that the pay. would be forthcoming.' • The defendants assumed, that burden without reservation. They did not guarantee that Phippin would pay, but personally undertook to see that payment was- made. There was no contingent liability; there was no suretyship in their promise. They were the owners, the benefit of the services accrued to them. That it was the intention of the Harts to be the paymasters is supported by the fact they paid each-man five dollars. That is a circumstance confirmatory of the character of their promise. (Floyd v. Wise, 17 N. Y. Supp. 725.) The nonsuit was error, and the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, e'xeépt McLennan, J., who dissented.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.,  