
    JOSEPH A. STIDHAM, Plaintiff and Appellant, v. WATSON SANFORD, Defendant and Respondent.
    I. Frauds, Statute of. —Promise to pay the Debt of Another.
    1. Non-liability of promisor, instance of.
    
    
      a. When A. employs B. to do certain work, C. cannot be made liable therefor, on any one or all of the following grounds:
    1. That A., when he employed B., told him that C. would pay for the work.
    The fact that such representation had been made, never having been communicated to C., nor assented to by him.
    3. That while the work was going on, C. told B. to" go on and do the work ordered by A., and he would pay for it.
    3. That during the progress of the work, A. introduced C. to B. as his partner and coadjutor, in his work; that B. then showed C. what was being done in connection with A.; that C. expressed great satisfaction at what was being done, and told B. to go on and do all that A. ordered, and he would pay for it.
    II. Principal and Agent.
    1. Upon the above facts, C. cannot be made liable under any principle of law relating to Principal and Agent.
    
    HI. Ratification.
    1. Upon above facts, C. cannot be made liable under any principle of law relating to Batijieation.
    
    IV. Finding of Fact.—Evidence.—Reversal.
    1. "When a judgment will not be reversed on the ground that a finding of fact is aga/inst the evidence.
    
    
      a. Where the evidence, although relevant, only tends to, but does not necessarily of itself, establish a fact alleged to exist, the inference drawn by the referee, either that the fact does not exist, or that in. truth the fact as it exists is opposed to that alleged to exist, cannot be disturbed.
    
    
      Before Monell, Curtis, and Sedgwick, JJ.
    
      Decided November 29, 1873.
    Appeal from a judgment in favor of defendant, entered on a referee’s report.
    The issues were tried "by a referee, who gave judgment for the defendant. The complaint alleges that the plaintiff at the request of defendant did certain work and sold and delivered to him certain goods, worth a certain sum which the defendant agreed to pay to the plaintiff.
    Before the case closed it seems to have been proved or recognized to be the fact, that originally the plaintiffs were requested to commence and finish the work, etc., by one Martin, who at the time said that the defendant would pay for the work.
    While the work was going on, and after it had been began, the defendant in company with Martin went to view it, and then met one of the plaintiffs. The latter testified on the trial that on such occasion the defendant told him to go on and do the work ordered by Mr. Martin, and he would pay for it. Another witness for plaintiff testified that on the same occasion the plaintiff showed the defendant what he was doing in connection with Mr. Martin, that the defendant was introduced to the plaintiff by Mr. Martin as his partner and coadjutor in his business, and that the defendant expressed great satisfaction at what he was doing—told him to go on and do all that Mr. Martin ordered him to do, and he would pay for it. The defendant had a single interview with the plaintiff.
    
      Royal S. Crane, attorney, and of coansel for appellant.
    
      Dailey & Perry, attorneys, and of counsel for respondent.
   By the. Court.—Sedgwick, J.

Assuming that the original party making the promise, express or implied, was Mr. Martin, the request of the defendant to continue the work, and his promise that he would pay, did not make him liable (Larsen Wyman, 14 Wend. 246). It was voluntary and without consideration.

Then the evidence must go the length of proving that in the first- place when Martin ordered the work, he acted for the defendant. If the evidence although relevant, was only testimony tending to show this, but did not of and by itself necessarily establish it; the inference drawn by the referee cannot be disturbed.

It nowhere appears in the case that the defendant was ever informed that Mr. Martin had at the time of his giving the order, said that Mr. Sanford would pay for it. If this had been shown, it may be that the referee would have been required (on proof that Mr. Sanford, upon hearing, did not dissent) to find that he thereby ratified (so to call it) Mr. Martin’s promise; as, however, it never was communicated to him, he cannot be held to have it ratified it (Rowan v. Hyatt, 45 N. Y. R. 141).

I think we must be satisfied with the referee’s finding that the original debt was Mr. Martin’s. The evidence of what the defendant subsequently did does not establish necessarily that Mr. Martin was an agent in giving the order of the defendant as his principal. If Mr. Martin acted for himself, it is entirely consistent with that that Mr. Sanford should do and say what was proven.

The fact that a credible witness testified that Mr. Martin, while the work was going on, introduced the defendant to the plaintiff as his partner and coadjutor in his business, and that then the defendant, expressing great satisfaction, told him to go on and do all that Mr. Martin ordered him to do, and he would pay for it, does not necessarily lead to the conclusion that they were partners at the time the work was ordered, and that it was ordered as part of the partnership business. If the referee, taking the whole case together, had found from that evidence such to be the fact, his conclusion would have had to be supported on the same principles that we must support his present conclusion upon. The referee had to find what the real, not the verbal, meaning of Mr. Martin’s words were, what business he referred to, whether the defendant heard, and understood what was said, and whether his promise to pay it himself did not show that it was not a partnership that was to pay it.

I therefore cannot see that there was any clear proof which required the referee to find otherwise than he did, and that the defendant was responsible' either as being at the time a partner of Martin, or that Martin was his agent then, or that he afterwards ratified the promise or engagement made by Martin that he should pay. This is the correct judgment, whether the findings and additional findings as made by the referee are taken by themselves, or the evidence in the case is considered in connection with them.

Judgment is affirmed, with costs.

Monell and Curtis, JJ., concur in the affirmation of the judgment.  