
    Edwin E. Tullis, Doing Business under the Name of Tullis & Company, Respondent, v. Samuel H. Stone, Appellant.
    First Department,
    January 11, 1907.
    Contract— action on alleged promise of officer of corporation to pay debt of corporation.
    The plaintiff had a contract to install a heating plant and a realty company had accepted an order from the owner to make payments to the plaintiff when due. When the work was partly completed, the plaintiff was warned that bojih the owner and the realty company were insolvent, and thereafter sued theitreasurer of the realty company upon an alleged personal promise to pay for the work already done in consideration of the plaintiff’s installing^ boiler on the premises. Evidence considered and
    
      Held, that a verdict for the plaintiff was against the weight of evidence.
    Houghton, J,, dissented, '
    
      Appeal by the defendant, Samuel H. Stone, from a judgment of the .Supreme Court in favor of the plaintiff, entered in the- office of the clerk of the county of New York on the 24th day of January, 1906, upon the verdict of a jury, and also from an order entered i.l .said clerk’s office on the 29th day of January, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Benjamin. F..Fevner, for the appellant.
    
      H. Snowden Marshall, for the respondent. ..
   Laughlin, J.:

' On the 21st day of February, 1905, the; Wolff Construction Company, as owner, entered into an agreement with the plaintiff, as contractor, by which the latter agreed to furnish “ all the materials and ' perform all the work for the erection of-the low-pressure steam-heating apparatus to be erected in the six-story apartment house located at northwest Cor. of 9Yth St. & Madison Avenue,- N. Y, City (complete in every respect).” It was further expressly agreed that the owner should provide all masonry required, but that the plaintiff was to assume entire responsibility for the work, as shown on the drawings and described in the specifications prepared by the architect, which were made a part of the contract. With respect to the compensation to the contractor for the work and materials, it was provided that the owner should pay $4,200, subject to additions and deductions as therein provided (not involved on this appeal) and that payments should be made only on certificates of the architect in installments, the first of $800 to be made “ when all risers are erected,” and the second of-$600 “on delivery of boiler,” and that the-payments should be due when the certificates for the same were issued. It was further provided that if at any timé theré should be evidence cf any Hen or claim against the contractor for which the owner of the premises might "become Hablé, the owner should have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify -him against such Hen or claim. The Manados Bealty Company, .which was making a building loan to the Wolff Construction Company, accepted, an order from "the latter to make the payments to the plaintiff under his contract. On or prior to the-llth day of March, 1905, the plaintiff claims to have erected .all of the risers, and prior to that day he had deposited the boiler in the street in front of the premises. The defendant was the treasurer of the Manados Realty Company. On said seventeenth day of March no payment had been made to the plaintiff. He testified that on that day he was informed by Mr. Roach, the president of the Wolff Construction Company, that it was insolvent; that his contract with it was worthless; that its interest in the building was about to be foreclosed; and that the Manados Realty Company was also insolvent; that he called on the defendant and informed him of these facts and stated that ip the circumstances he could not deliver the boiler and intended to take it away ; that the defendant said to him that if he would put the boiler in the cellar, he would personally make the first two payments, aggregating. $1,400, on plaintiff’s contract, and that thereupon plaintiff delivered the boiler in the cellar. The recovery has been had upon the theory of an original promise on the part of the defendant individually to pay the $1,400, as testified to by the plaintiff. It does not appear that the defendant had any interest in the building or in the contract, except, as treasurer of the company making the building loan.

The plaintiff further testified that after he delivered the boiler he demanded payment of the defendant, who requested a certificate of the architect or authority from Mr. Roach, the president of the Wolff Construction Company; that he endeavored to obtain such consent or certificate, but being unable to do so, wrote the defendant on the 21st day of. March, 1905, demanding that the defendant fulfill his verbal contract and guarantee” to make the payment of the $1,400 ; that he never obtained a certificate of the architect entitling him to either payment. On cross-examination, the plaintiff was asked to relate again his conversation with the defendant, and in narrating it he did not testify that the defendant agreed to make any payment individually, and he also testified that the defendant wanted him to put in the boiler in accordance with the contract, and that his understanding was that he was to put the boiler in. in accordance with his contract with the Wolff Construction Company, and that if he did that, he was to receive $1,400 when he got the certificate of the architect, and he admitted that he did not put in the boiler in accordance with his contract with the Wolff Construetion Company, which required him to set it on the foundation. He further admitted that he did not submit to the architect for his approval working plans before he commenced the work in the building, as required by his contract, and that he did not submit working plans as to the risers until on the day on-which he'claims to have •had the conversation with the defendant upon which this action is based.

The plaintiff called as witnesses to part of his conversation with the defendant, Mr. Hartwell, a builder, and Mr. Raff," who was superintendent -for Mr. Hartwell. Hartwell, testified that he called to see the defendant and found him engaged in a conversation with plaintiff ; that he, heard the defendant say, “ When you have done your work you will - get your money,” to which the plaintiff replied,

Well, it means that I am not going to get my money; ” that the witness asked the plaintiff what he wanted, to which the plaintiff replied, “ I want my mon'ey; ” that the witness asked, “ How much is there due you,” to which the plaintiff replied, “ $800 for risers and $600 for the boiler,” whereivpon the witness said, “Well, Mr. Stone, what do you want,” to which the defendant replied, “ I want that boiler put in,” whereupon the witness said, “Well, will you pay for it?” To which the defendant replied, “Yes, I will pay for that boiler, Roach or no'Roach, when it is set on the foundations.” Raff testified that-when he came into the room the plaintiff was asking for the $800 payment for the risers, which the defendant refused, but said, “ Mr. Tullís, if you put tliat boiler in the building I will make you the payment.” The defendant flatly contradicted the testimony of the plaintiff and denied he made any individual promise in the premises. His testimony is to the effect that on the seventeenth day of March the plaintiff called at his office and in the presence of Mr. Roach, the president of the Wolff Construction Company, asked for the “boiler payment,” and was informed by defendant that the risers were not right and that the plaintiff had not given the architect the “ lay out,” to which plaintiff replied that he would fix the risers and would give the architect the “ layout ; ” that plaintiff said he wanted the $'600 “ boiler payment ” and defendant answered in substance that if Mr. Roach wanted it advanced, he would pay it; that later on, in the presence of Mr. Hartwell, the plaintiff demanded the $600 as the “ boiler payment,” to which defendant replied that he would pay him for the .boiler if he put it in, at the same time saying, in substance, that the company could advance the money to the construction company, and that subsequently after the plaintiff delivered the boiler in the cellar and when he was about to advance, with the consent of Mr. Roach, $600 for the boiler, and on the architect’s certifícate which he and Roach had induced the architect to give as to the boiler, it was discovered that there was a chattel mortgage of $585 on it, and the defendant, acting for the company, refused to advance the money until the lien of the mortgage was discharged. Mr. Roach, the president of the Wolff Construction Company, testified in behalf of the defendant with respect to the conversation between the defendant and the plaintiff on the seventeenth day of March, that the bureau of incumbrances would not permit the boiler to remain on the street and that the plaintiff asked defendant if he would waive the question as to the first payment and advance the $600 as the "• boiler payment,” to which the defendant replied that he had no objection if the witness was willing and if plaintiff would comply with his contract by putting the boiler on its foundations in accordance with the contract and specifications, which the plaintiff agreed to do; that after the delivery of the boiler in the cellar, he was in the defendant’s office.when the plaintiff was present, and the defendant was about to write a check to make the $600 payment, when the plaintiff admitted that there was a chattel mortgage on the boiler which he said he would remove the following morning, whereupon the defendant refused to make the payment. This witness also testified that the plaintiff failed to submit for the approval of the architect working plans, and that in consequence of this failure some of the risers were erected in a manner interfering with the design of the architect in other respects and it became necessary to change them. The architect testified that he refused to issue the certificate for the first payment because the plaintiff failed to comply with the requirements of the specifications and he stated in detail the respects in which the plaintiff failed to perform his contract and said that he repeatedly drew plaintiff’s attention to these omissions. The plaintiff was called in rebuttal and ■ denied that the architect refused the certificate upon the grounds stated by him and testified that in November, 1905, he paid the note to secure which the chattel mortgage was given, but he admitted that the mortgage was on record at the time he asked for the payment and so remained until November, if not later. •

The learned trial judge, in denying the motion for a new trial, Wrote a memorandum stating that the credence given by the ' jury to the testimony in support of the plaintiff’s theory of the case surprised himj but he denied the. motion upon the ground that that ivas a question for the jury. We are of Opinion that the. verdict should have been set aside as against the weight of evidence. It is highly improbable that the defendant, who was merely acting as an ■' agent for the Manados Realty Company, would obligate himself personally in the matter. The fair construction of all the ' testimony, except that of the plaintiff on his direct examination,is that, the defendant was speaking for his company: Moreover, it is quite - clear that the plaintiff had not earned or become entitled to the first two payments under his contract with the Wolff Construction Company: He concedes this as to the second, -at least, and admits , that lie did not procure the certificate o'f the architect as to eitherj but lie claims in one part of his testimony that the personal agreement made by the defendant with him ivas more favorable, and im another part of his testimony admits that under defendant’s agreement with him. he was not to be entitled to payment for the boiler except upon compliance with his contract with the Wolff Construe^ tion Company with respect to installing . it. Upon his-own testi-. mony it is clear that he did not comply with that contract in two respects, first, he did not place the boiler on the foundation ; and, secondly, there being a chattel mortgage of record against the boiler, and the defendant.and his company, through him, having notice thereof before the boiler was attached to the realty^ the indebtedness, secured by the chattel mortgage constituted a claim or charge upon which the owner might be liable under the contract.

The learned counsel for the plaintiff seeks to sustainthe reeo'very .upon the theory that the plaintiff subsequently paid the debt for ■ which the chattel mortgage was security!- The difficulty with that theory is that this is an action at law and the plaintiff was only entitled to recover upon a cause of action complete at, the time he commenced the action. Moreover, we thiqk the plaintiff did not sustain the burden of proof to establish an original individual promise by the defendant to pay either the first or second installment under the contract.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., McLaughlin and Scott, JJ., concurred ; Houghton, J.,' dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.- Order tiled.  