
    Edward Sloan vs. F. M. Whitlock.
    
      Contract.
    
    Where several persons unite for the purpose of having work done, in which they have a common interest, and appoint a committee to have the work done, one of the committee who engages a laborer to do the work is not, in the absence of a special contract, responsible alone upon an implied contract.
    BEFORE MUNRO, J., AT CHESTER, FALL TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows :
    “ Plaintiff’s counsel stated, on opening the case, that the declaration contained two counts, the one on a special contract, the other on a quantum meruit.
    
    "The facts appeared to be these: in the year 1857, certain •persons interested in the graveyard at Woodward Baptist Church met to see about building a stone wall around the yard. Dr. Isaiah Mobley, David Mobley, Jesse Cornwell, Adam T. Walker, James Sweat, the plaintiff, and perhaps others, were present. It was agreed that a wall- should be built, and the defendant and Adam T. Walker were named as a committee to take the matter in charge. Mr. Walker, however, stated in his examination that he did not consent to act.
    “ It was proved that the plaintiff was employed to undertake the work. One witness said that defendant told him that‘ he had employed Sloan to do the work, and was to pay him one dollar and forty cents per foot for seven hundred feet.’ Another witness, speaking of the same conversation, said that the words of defendant were, ‘We have employed Sloan to do the work, and we are to pay him. one dollar and forty cents per foot for seven hundred feet.’ Another witness says he heard defendant say, 'that he had agreed to pay Sloan nine hundred dollars for the job.’
    
      “ The plaintiff entered upon the work and continued in quarrying rock for twenty-four or twenty-five days, having in his employment his two sons, Robert and Edward, a negro woman, and a wagon and team. Plaintiff also went two days on a visit to York to purchase lime. Plaintiff’s work was proved to be worth two dollars per day; his son Robert, two dollars; Edward, one dollar and fifty cents; the negro woman, one dollar, and the wagon and team four dollars and fifty cents. Plaintiff boarded himself and hands. He had also in his employment the wagon, team and driver of defendant for ten or eleven days — worth four dollars and fifty cents per day. Some lime was bought and brought by railroad from York to Chester. One load was thence hauled by plaintiff’s wagon, and one by defendant’s wagon whilst it was in plaintiff’s employment. Defendant at one time paid plaintiff forty dollars on account of work, at another time paid at the depot for the lime and freight, amounting to about twenty-six dollars.
    " The plaintiff quit the work after getting out and hauling to the graveyard about half enough rock to build the wall. None of the wall was built — nothing further done but cleaning off the ground; and the work yet remains in this condition.
    " As to the cause of plaintiff’s quitting, it was proved by one witness that defendant said 'he had discharged him.’ The same witness says that he was present at defendant’s house when plaintiff came to ask if he might go on with the work, and that defendant forbid him to touch another rock, saying that'they were not satisfied with the'work, and that it could be done cheaper.’ On the part of defendant it was proved by Adam T. Walker, that plaintiff came to him to have him sign a paper about the wall, saying Whitlock would sign it if he would; that he declined so to do; that Sloan thereupon said he ' would quit the work that witness replied, (If you expect me to pay for it, you may quit;’ that Sloan thereupon said, 'Do you say quit?’ to which witness replied as before ; that Sloan thereupon went off. Witness did not read the paper, but understood it-to be a contract for his and Whitlock’s signature ; it was after witness had heard of Sloan having commenced the work.
    ''The jury found for the plaintiff one hundred and sixty-seven dollars. My omission to instruct the jury on the legal point referred to in the defendant’s third ground of appeal is strictly correct. My attention having been directed almost exclusively to the special agreement which was attempted to be set up, I overlooked the important fact that there were other parties as much interested in the work as was the defendant. At all events, whatever its influence may have been, it was a point upon which, I think, the jury should have been instructed.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds:
    1. That there was no evidence showing that the defendant had contracted with the plaintiff, otherwise than as the agent of the persons interested in building the graveyard wall, and in no such way as to render himself personally and solely liable to plaintiff.
    2. That, according to the testimony, the plaintiff abandoned • the work he had undertaken, in his own wrong, and was therefore not entitled to compensation, either on the special contract or on his quantum meruit.
    
    8. That his Honor erred in not instructing the jury (as requested by defendant’s counsel) that, in the absence of a special contract making the defendant liable personally, the plaintiff could not recover, as against the defendant, on an implied contract.
    
      Melton, for appellant.
    
      Williams, contra.
   The opinion of the Court was delivered by

Johnstone, J.

We are inclined to grant a new trial, especially on the third ground of appeal. The Circuit Judge is of opinion that his omission to charge as requested was erroneous; and concurring with him in that respect, it is

Ordered that the motion for a new trial be granted.

O’Neall, C. J., and Wardl aw, J., concurred.

Motion granted.  