
    WILHELM v. VOSS.
    1. Statute op Frauds — Original and Collateral Promises.
    An oral agreement by the owner of a building to pay a subcontractor for his work is binding upon him if such subcontractor abandons his contract with the principal contractor, so as to retain no claim against him, but not otherwise.
    2. Principal and Agent — Evidence.
    Evidence that defendant in an action to recover for plastering a house told plaintiff that he would leave it all to a third person to look after the business for him is sufficient for the submission to the jury of the question of the agency of such third person.
    Error to Wayne; McMahon, J., presiding.
    Submitted April 8, 1898.
    Decided September 20, 1898.
    
      Assumpsit by Peter Wilhelm against Albert J. Voss for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    
      A. Gr. Pitts, for appellant.
    
      James PL. Pound, for appellee.
   Hooker, J.

Van Bogaert & Co. erected a building for Voss, under a contract. When it was ready for plastering,'Van Bogaert, accompanied by Domke, who worked upon the house as a carpenter in Van Bogaert & Co.’s employ, went to the house of the plaintiff, when the plaintiff and Van Bogaert, acting for his firm, made a contract whereby the plaintiff agreed to do the lathing and the plastering upon the house for Van Bogaert & Co. The plaintiff hired Bolster to do the lathing, and he suggested to the plaintiff that Van Bogaert & Co. were irresponsible; and thereupon the plaintiff saw Domke, who lived in the family of Voss, and who said that he expected to marry Ms daughter, and occupy the new house when completed, and was assured by him .that Voss would see that he was paid before he paid the contractors. The plaintiff also testified that he told Voss himself that “he would not do the job unless he. would pay him for the job, because he did not think the contractor was any good,” and that “Voss told him that he would pay him if he plastered the house.”

The important question in the case is whether this oral promise constituted a valid contract. It is claimed that it is within the statute of frauds. The circuit court held otherwise, and the jury found a verdict for the plaintiff. The statute of frauds makes void any oral promise to answer for the debt or default of another. So that, if we must say that the plaintiff in this case performed his contract with Van Bogaert & Co., thereby making them his debtors under the contract which all agree was made with them, it is manifest that the promise alleged to have been made by Voss was collateral merely, and void because not in writing..,--The fact that Wilhelm had made a contract with Van Bogaert & Co. to do this work would not necessarily render invalid a subsequent contract with Voss to do the same work, but both of these alleged oral promises to pay for this work could not be valid at one and the same time. Unless the contract with Van Bogaert & Co. was abandoned by Wilhelm, so that there would remain no right to a claim for-compensation for the work when done, as against them, the promise alleged of Voss was collateral, and void under the statute.

The right of the plaintiff to recover against the defendant must depend upon the actual state of affairs at the time the work was done. If it was done in pursuance of ,and under the contract with Van Bogaert & Co., the performance created an obligation against Van Bogaert & Co., and not against Voss; while, if the plaintiff repudiated the contract made with that firm, so that, although he plastered the house, it was done under a different arrangement, and gave rise to no obligation upon the part of Van Bogaert & Co. to pay, the defendant would be liable for his promise to pay for the work, if he made such promisev The danger of injustice in this case arises from the opportunity afforded for the plaintiff, after finding himself unable to collect from Van Bogaert & Co., to say that he abandoned his first contract, and relied on the second, when in fact this was an afterthought, to avoid the effect of the statute of frauds. This is, however, a question of fact, and it was proper to submit it to the jury, unless the evidence conclusively showed that the work was done under the contract with Van Bogaert & Co., or that the alleged promise of the defendant was only a collateral promise. In our opinion, there was evidence tending to support the plaintiff’s theory, and it was proper to submit these questions to the jury.

Another question in the case requires discussion. Testimony of statements made by Domke, the defendant’s son-in-law, was admitted, tending to show that an original promise was made by him, upon behalf of the defendant, and it was claimed that he was the authorized agent of the defendant in the premises. It is now contended (as it was in the circuit court) that there was no proof of agency. The learned circuit judge thought there was such proof, and submitted the question to the jury. We agree with him that there was some testimony to that effect. It is to be found in the testimony of Wilhelm that, at’ the time Voss and he had their first talk, nothing was said about Domke, but that afterwards he said that he would leave it all to him, — to look after the business for him. This, in conjunction with what occurred, justified the judge in leaving the question to the jury. Had specific objection been made, the testimony that Domke stated that he was the agent of Voss should have been stricken out as hearsay; but the objection included much more, and, as a whole, was not well taken.

Counsel also maintains that the evidence fails to show the value of the services, or that a price was agreed upon. As to this, we are of the opinion that the jury were justifled in treating 17 cents a yard as the price contemplated by all parties.

The judgment is affirmed.

The other Justices concurred.  