
    DOUGHERTY v. STONE.
    (Supreme Court, General Term, First Department.
    December 16, 1892.)
    1. Statute or Frauds—Collateral or Original Promise—Evidence. Defendant was sued on a paroi promise to pay for material used in the house of another. Title to the house was in the son of the former owner, having been placed there, as represented to plaintiff, on account of the father's insolvency. Plaintiff testified that he was first asked by the father to make estimates for the material before seeing defendant, and that the father expressed himself as satisfied therewith. On cross-examination he stated that he was employed by the father for the son. The estimates were in the son’s name, and the materials were charged and bill rendered to him. Plaintiff filed also a mechanic’s lien, in which he asserted that he was employed by the son. Defendant was a mere custodian of money placed in his hands to be disbursed on the father’s orders. This was understood by plaintiff. Plaintiff testified as to the promise itself that, on asking the father about his pay, he was told to look to defendant, and,, on asking defendant whether the latter would pay him if he did the work, was told that he would pay for anything on the father’s order. He’d, that the undertaking was collateral,,¡within the statute of frauds, and that the complaint should have been dismissed at the close of plaintiff’s testimony.
    2. Same. If not then dismissed, a verdict should at least have been directed for defendant, after a positive denial by him, corroborated by father and son.
    8. Same—Instruction—Inadvertent Mistake. An instruction that the effect of charging the materials and rendering the bill to the son was sought to be neutralized by testimony that the acts were done under the direction of “defendant’s” agent, meaning the father, who was not, however, defendant’s agent, but the son’s agent, though mere inadvertence presumably, was erroneous, as tending to confuse.
    4. Same—Inapplicability. The giving of an instruction on the law governing joint obligations, which was not involved in the case, followed by a further instruction, when the court’s attention was called to the matter, that the proposition before charged was merely an abstract proposition, which would amount to nothing in case the jury should find there was no joint obligation, was erroneous in leaving the jury to decide whether there was in fact a joint obligation or not.
    Appeal from circuit court, New York county.
    Action by James Dougherty against Leander Stone for work and materials expended on a house of Louis M. Mowbray, on defendant’s paroi promise to pay therefor. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed.
    Argued before VAN BRUNT, P. J., and BARRETT, J.
    
      George S. Hamlin, for appellant.
    William W. Niles, for respondent.
   BARRETT, J.

The sole question hei;e is whether the defendant’s promise was original or collateral. There are certain undisputed facts which seem to be controlling upon this question,—facts testified to by the plaintiff, Dougherty, himself. It appears from this testimony that Dougherty knew that the title to the houses in which the materials were to be used was in one Louis M. Mowbray. Anthony Mowbray, Louis’ father, told Dougherty that a mortgage upon, the houses had been foreclosed, and that as he, Anthony, who was formerly the owner, could not take the title in his own name, he being insolvent, they had been put in his son, Lewis’, name. Dougherty negotiated with Anthony Mowbray about estimates and price before he saw the defendant. His testimony on this head is as follows:

“I undertook tire work at this place in this way: Mr. Mowbray asked me to go in and measure the houses. I asked him about what he calculated to spend on glass for the houses, the same as I have been doing work for him for years. He said he thought he ought to get it done for $1,50(1,—$300 a house. I went and measured all the work in the houses at the time, and I told him I would do it for $1,500.”

He was also asked whether there was an agreement between himself and Anthony Mowbray,—“a talk as to limiting the cost to $1,500,”—to which inquiry he answered as follows:

“Answer. He said about $1,500. We had a conversation about it. He told me he thought he ought to get glass good enough for $300 a house, and asked me to-go in and measure it up, and see-if I could do it for that. I told him I could do it for that,—all that was there. ”

Subsequently the-following questions were put to him, and the following answers given:

“Question. Had any agreement been made at that time? [The time here referred to was that of the defendant’s alleged promise.] Answer. He only said he Was satisfied with the estimate, and he was in a hurry for the work; that there were-people there looking at the houses, Q. And you said you would do it for that estimate? A. Yes, sir.”

He also stated on cross-examination that he was employed by Anthony Mowbray on his son’s behalf. ' Dougherty made the estimates in Louis Mowbray’s name, and he also arranged with Anthony Mowbray that the bill for his work and materials should also be made out to Louis. Accordingly he did the work upon the- houses, furnished the materials, charged the goods upon his books and made out the bill therefor to Louis. When the work was finished he took the bill himself to Anthony, who gave him an order on the defendant for $350, which was paid. Subsequently he filed a mechanic’s lien against the property, in which he stated under oath that the name of the person by whom he was employed, and to whom he had furnished the materials, was Louis M. Mowbray. The defendant came into the matter as a mere custodian of certain moneys which were put into his hands to be .disbursed. It appears that prior to the time of the alleged promise Louis Mowbray had given a mortgage to one Tiffany, with the understanding that the latter was to make advances thereon for the completion of the houses. Tiffany made these advances directly to Louis, who turned the money over to the defendant, to be disbursed upon Anthony Mowbray’s orders. Dougherty understood all this, and when the alleged promise was made he knew just what Stone’s position in the matter was. He testified that Anthony Mowbray told him that “Mr. Tiffany had agreed to loan money enough, to finish the houses, and that it was in Mr. Stone’s possession,” and that he must see Mr. Stone about his pay. And, again we quote questions and answers:

“Question. Have not you just said that he [Anthony] told you that Mr. Tiffany had advanced money for the completion of the houses, which were in Mr.„ Mowbray, and that that money was in Mr. Stone’s hands? Answer. Yes, sir. Q. And that you were to be paid out of the moneys in Mr. Stone’s hands, advanced by Mr. Tiffany? A. Yes, sir. ”

Dougherty’s testimony as to the promise itself was brief:

“I asked him [Anthony Mowbray] who was to pay me. He said ‘Leander Stone.'”

Shortly afterwards Stone arrived. Dougherty was introduced to him by Anthony as the man who was going to do the stained glass work, and the promise is said to have been then made. This is the plaintiff’s entire testimony with respect to it:

“I then asked Stone, if I done this work, if he would pay me. He said yes, he would pay anything put in these houses which was ordered by Anthony Mowbray. ”

It is impossible, upon all the facts, to treat this promise as original. It was clearly collateral to the original liability of Louis M. Mowbray, and the facts overwhelmingly show that the plaintiff so understood it, and so relied upon it. If Louis Mowbray was liable to the plaintiff, then the promise was necessarily collateral, there being no question of a joint liability; and the rule is well settled that if the person for whose use the goods are furnished be liable at all, any other promise by a third person to pay that debt must be in writing; otherwise it is void by the statute of frauds. Brady v. Sackrider, 1 Sandf. 514; Dixon v, Frazee, 1 E. D. Smith, 32; Allen v. Scarff, 1 Hilt. 212; Matson v. Wharam, 2 Term R. 80; Bugbee v. Kendricken, 130 Mass. 437; Cahill v. Bigelow, 18 Pick. 369. How can it be seriously contended, upon the facts above stated, that it was not contemplated that Louis Mowbray should be liable at all? The estimates were made out in his name, the goods were charged to him, the bill was rendered to him, and the plaintiff under oath asserted that he was employed by and furnished the goods to him. The charging of the goods and rendering of the bill to Louis are facts which may not, of themselves, be conclusive. All the facts to which we have adverted are undoubtedly susceptible of explanation. But the trouble is that no sufficient explanation was given. There was no mistake or inadvertence about what was done. The plaintiff says that he charged the goods and made out the bill as he did because Anthony Mowbray told him to do so. This may explain why he did not charge them to Anthony Mowbray, but it does not explain why, if the sole credit was given to the defendant, they should have been charged to either of the Mowbrays. As to the mechanic’s lien, there was no attempt at explanation, and it is indeed difficult to see how such an aifidavit could be explained away. Instead of weakening the force of the affidavit, the plaintiff strengthened it, by showing that it was deliberately made. He testified that when he filed the mechanic’s lien he supposed the statement was true, and that he would not have sworn to it if he had not thought so; that he went to the county clerk’s office, and got a young man there to draw it up, and that he furnished all the information upon which the young man acted in preparing the paper; and he also admits that he made this affidavit after he had received the $350 from the-defendant on Anthony Mowbray’s written order. -These facts “are much stronger against the claim of an original promise than the facts in many of the cases where, notwithstanding absolute expressions of the promisor, the engagement was held to be collateral. Matson v. Wharam, supra; Anderson v. Hayman, 1 H. Bl. 120; Dixon v. Frazee, supra; Langdon v. Richardson, 58 Iowa, 610, 12 N. W. Rep. 622. And see Browne, St. Frauds, (4th Ed.) p. 229; Wood, St. Frauds, § 98; and 2 Pars. Cont. (7th Ed.) p. 11. We think, therefore, that the complaint should have been dismissed at the close of the plaintiff’s case.

We think, also, that a verdict should have been directed for the defendant when the testimony was all in. Even if there was enough in the terms of the promise, notwithstanding the interpretation placed upon it by the plaintiff’s own acts, to justify the denial of the nonsuit, it is quite clear that the plaintiff’s testimony, weakened, as it was, by his acts, could not stand for a moment against the defendant’s denial, corroborated, as it was, with regard to the surrounding circumstances, by the Mowbrays. The plaintiff’s testimony as to the expression used by the defendant when the promise was made does not harmonize with his subsequent acts and statements, and this testimony should not have been submitted to the jury as against positive denials,—denials, too, which were corroborated with regard to important circumstances,—without at least some plausible or rational explanation of thése subsequent acts and statements. For all such acts and statements plainly indicated that the plaintiff must have understood the defendant’s promise to be collateral to the original liability of Louis M. Mowbray.

It was also error to instruct the jury, as the learned judge did, in substance, that the effect of charging the goods and'rendering the bill to Louis Mowbray was sought to be neutralized by testimony on the plaintiff’s part that these acts were done under the direction of the agent of the defendant. The learned judge here referred to Anthony Mowbray, who was the agent of his son Louis, but not of the defendant. We presume this was an inadvertence, but what was said tended to confuse the -jury, and it-is not improbable that their strange verdict resulted from some idea that the defendant was himself responsible for the very acts which foreclosed the plaintiff.

There is still another point which should be adverted to. What was said about a joint contract was inapplicable to the undisputed facts, and consequently a false issue was submitted to the jury. - When the learned judge’s attention was called, by the defendant’s exception, to what he had said as to the law governing a joint obligation, he stated that the proposition already charged was an abstract one. He added that if, on all the evidence, the jury should find that there was no joint contract, then the proposition would amount to nothing. Thus it was left to the jury to decide whether, as matter of fact, there was a joint contract, and, if there was, to apply the proposition already stated. This question of a joint contract was not in the case at all, and should not have been submitted to the jury in any form. It should rather have been eliminated from the case entirely if the jury were to be kept from wandering from the real issue.

The judgment and order denying the motion for a new trial should be reversed, and a new trial ordered, with costs to the appellant to abide the event.  