
    John Measick, Resp’t, v. Francis A. Tefft, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888)
    
    Contract—Construction of—Liability fob wages.
    The owner of a stone quarry entered into a contract to supply stone to a railway corporation, and subsequently assigned it to another as collateral security for a loan, the assignment empowering the assignee at any time to enter and prosecute the work under the contract, and to receive all moneys due or to become due thereon until the whole indebtedness should be paid. Held, that the assignee never having availed herself of the authority to prosecute the work, the assignment aid not alter the relations existing between her and the assignors, so as to make her the principal in the prosecution of the work under the contract, and that she was not liable for the wages of laborers engaged in that work.
    
      On the trial in the court below, the case was submitted upon the pleadings and the facts, which were stipulated to be as follows: “ That George S. Van Schaick was the owner of a stone quarry in Kingsburg, and had been operating the same since 1880, and continued to do so till on or about September 20, 1886, and had employed the plaintiff and assignors named in the complaint as labors therein, and that they severally continued to work in said quarry till about the 20th day of September, 1886, some having been first so employed before and some after the 23d of June, 1886, and that said Van Schaick paid them to apply on their labor the sums as specified in the complaint; that said Van Schaick kept all their accounts and continued to operate said quarry down to the said 20th of September, and that on that day the various sums claimed in said complaint to be due them were due them for such work in said quarry performed after June 23, 1886; that the persons named in said complaint as assignors have severally assigned their respective claims to plaintiff.
    That on or about June 1, 1886, the said Van Schaick entered into an agreement with the Delaware and Hudson Canal Company by which he was to deliver to it from said quarry about one thousand yards of stone at two dollars per yard, and that a large quantity of stone was delivered to said company under said agreement.
    That out of the money growing due on said contract, the defendant was paid by said company the sum of $912.50. That on the 23d day of June, 1886, the said Van Schaick executed and delivered to defendant, the instrument of which a copy is hereto annexed, and that said $912.50 was so paid by virtue of such assignment which is to be treated as offered in evidence by plaintiff. The quarry here referred to is the same referred to in said instrument of assignment.”
    The instrument referred to in the foregoing stipulation as executed by Van Schaick and delivered to this defendant, recites in eifect that being indebted to said Frances E. Tefft in the sum of $1,542.73, and she being uneasy and anxious regarding her money and security, he assigns to her as collateral security for the aforesaid indebtedness, all his right, etc., to a certain contract for stone with the Delaware and Hudson Canal Co., and all .moneys owing and payable by virtue of said contract, or until the whole amount of said indebtedness shall have been fully paid, constituting her his lawful attorney to ask and receive all the moneys due or which may become due on account of said contract, with power to enter upon the premises to quarry and remove stone necessary to complete the contract.
    The case was tried before the court without a jury, and it was decided: That Van Schaick was the agent of the defendant in respect to the performance of the contract with the Delaware and Hudson Canal company. That the defendant was principal. That plaintiffs assignors were employed by defendant through Van Schaick as her agent, and rendered judgment for the plaintiff in the sum of $272.91. From that judgment defendant appeals.
    
      M. A. Sheldon, for app’lt; D. J. Sullivan, forresp’t.
   Parker, J.

The evidence does not warrant the finding of the trial court.

The defendant did not employ plaintiff, or his assignors, and did not authorize Van Schaick to employ them for her, or on her account. Plaintiff and his. assignors do not even pretend that she employed them, or that Van Schaick claimed that the employment was for her, that he was her agent, and that he was not the principal, and managing the quarries as theretofore; or that during the time of their employment they even knew or heard that she was in any wise interested in the quarry or contract in question. On the contrary, it does appear that Van Schaick owned the-quarry, had operated it for a number of years, employed the plaintiff and his assignors, paid them on account of their services, kept the accounts between them and himself, and operated the quarry down to the date when the claims for which this action was brought accrued.

From the facts admitted, aside from the assignment of the contract as collateral security, it is clear, that the defendant was not the employer, and equally clear that Van Schaick was, and was so regarded by the plaintiff.

Unless then the legal effect of the assignment was such as to constitute this defendant the principal, and Van Schaick her agent in the working of the quarries, the decision is not only against the weight of evidence, but is absolutely without evidence to support it.

Now by the terms of this assignment executed by Van Schaick alone, defendant by its acceptance obligated herself to take it as collateral security for her debt, and to apply such sums as she should receive by reason of the security on account of such indebtedness until fully paid. No other condition was imposed or sought to be imposed by it. Its acceptance created no legal obligation on her part either toward Van Schaick or the Canal Company to see that the contract itself was performed. She had the right as against Van Schaick to enter upon its performance, if she chose. Neither he nor anyone else had the right to insist that she should perform. She might undertake it or not, at her own election She elected not to perform, and passively accepted this collateral security for an acknowledged debt.

The legal effect of that which Van Schaick did was to pledge this contract with the canal company to the defendant. It remained his contract after the assignment as much as before, subject to the conditions and Hen of the pledge. As between Van Shaick and the company he was, at all times bound to perform the contract, and the defendant had no right to interfere with such performance in any other way than as Van Schaick’s agent, under the appointment contained in the assignment.

She never assumed any such right. Had she done so she would have been agent for Van Shaick and not Van Shaick her agent. To have constituted him her agent would have required some act on her part outside of and beyond the contract. No such act is proven or claimed.

Judgment reversed and a new trial granted, costs to abide event.

Landon, Oh. J., and Fish, J., concur.  