
    Jacob Werlein, Appellant, v. The Tower Manufacturing & Novelty Co., Respondent.
    (New York Common Pleas
    Additional General Term,
    April, 1895.)
    While plaintiff was engaged in making repairs to certain trucks at the request of one M., who controlled them under an executory agreement of sale with defendant’s treasurer, the collector of defendant told him that if he wished to do work for M. he had better render hills therefor to the company and the treasurer would see that M. paid them. Plaintiff did similar work at various times thereafter, hut rendered no hills to the company until after M.’s death, when he presented a hill for the whole work. Held, that, assuming that the collector had authority to hind the company hy his agreement to guarantee payment of the hills, no recovery could he had thereon, as the condition to liability thereon had not heen fulfilled hy the plaintiff.
    Appeal from a judgment of the District. Court in the city, of New York for the third judicial district, rendered by the justice, without a jury, in favor of the defendant.
    
      Action for work, labor and services.'
    
      Daniel S. Decker, for appellant.
    
      Charles II. Williams, for respondent.
   Bischoff, J.

Upon the evidence in this case we find no justification for a reversal of the judgment rendered in favor of the defendant. There was some conflict of testimony, but upon the main points of the litigation the record discloses a preponderance of evidence in favor of the prevailing party.

It appears that the work for which this action is brought was performed at the request of one Peter Mead in making-repairs upon certain trucks controlled by him under an executory agreement of sale with David A. Tower, defendant’s treasurer, and that all work of the same character previously performed upon these trucks had been paid for by Mead himself, except in one instance when defendant’s collector, Clark, made a payment of forty dollars in satisfaction of a bill rendered to Mead.

When making this payment Clark stated to plaintiff that if he wished to do work for Mead he had better render bills to the company thereafter in each instance as future work should be performed, and that Mr. Tower would see that Mead paid them.

The evidence directly shows that no bills were rendered thereafter to the company for the work in suit, but that plaintiff continued to make repairs at the instance of Mead, and only after the latter’s death was a bill for the whole work presented.

The record fails to disclose an authority in Clark, express or implied, to bind the defendant company to an agreement to pay for this work, but assuming that it had thus guaranteed the payment of the bills, still the condition to the liability had not been fulfilled by the plaintiff and a recovery could not be based upon the agreement. Miller v. Stewart, 9 Wheat. 680 ; Grant v. Smith, 46 N. Y. 97; 9 Am. & Eng. Ency. of Law. 83.

Moreover, the evidence clearly supports the conclusion that plaintiff continued to give credit to Mead and did not rely upon the agreement here claimed to have been made, which conclusion is the more strongly supported by his failure to render the bills as the work was done.

Judgment affirmed, with costs.

Giegerich, J., concurs.

Judgment affirmed, with costs.  