
    Arthur W. Teele and Others, Composing the Firm of Patterson, Teele & Dennis, Respondents, v. Joseph B. Mayer, Appellant.
    First Department,
    July 10, 1916.
    Contract — Statute of Frauds — oral promise to be responsible for debt of another — lack of consideration;
    Where in an action by public accountants for professional services rendered in the examination of the books of two railroad companies of which the defendant was president, it appears that the contract was evidenced by two letters, one by the plaintiffs in which they stated their terms and the other by the defendant in which their services were accepted; that after the plaintiffs had commenced work the defendant, who was not personally interested in having the company’s books examined other than his interest as an officer and stockholder, stated that he would be personally responsible for the work, and that the plaintiffs did no more in reliance upon defendant’s promise than they were already bound to do by their contract, said promise is not only invalid under the Statute of Frauds but is also unenforeible because of a lack of consideration.
    The doing of an act which a party is under a legal obligation to perform cannot constitute a consideration for a new contract.
    Appeal by the defendant, Joseph B. Mayer, from a judgment of the Supreme Court in favor of the plantiffs, entered in the office of the clerk of the county of- New York on the 29th day of April, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of May, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      
      Samuel F. Moran, for the appellant.
    
      Holmes V. M. Dennis, Jr., for the respondents.
   Scott, J.:

The plaintiffs have recovered a judgment against defendant individually for services rendered as public accountants in the examination of the books of two railway companies operating in the western part of the State of New York. Both of these companies were held in the same ownership, and at the time of plaintiffs’ employment the defendant was president of both. The original contract for these services was made between plaintiffs and the defendant acting as such president, and was evidenced by two letters, one by plaintiffs, dated June 4c, 1910, in which they stated the terms upon which they would make the examination, and one by defendant dated June 8, 1910, in which their services were accepted on the terms stated by them. This is not, as was developed on the trial, the contract upon which plaintiffs rely, and it is very apparent from all the circumstances of the case that in making this first contract defendant acted in behalf of the railway companies, and that the contract was theirs.

The complaint alleged generally that ‘ ‘ between the 30th day of May, 1910, and the 30th day of December, 1910, the plaintiffs did and performed certain work, labor and services * * * for the defendant and at the defendant’s special instance and request.” The bill of particulars stated that the request of defendant to plaintiffs to do the work, and his promise to pay therefor were oral and were on or about June 16, 1910. Plaintiffs’ counsel in his opening to the jury, which was taken down and forms part of the record, distinctly states that the ; original employment of plaintiffs was by defendant as presij dent of the roads, and that his individual obligation, upon which i plaintiffs sue, came later. Defendant’s individual premise, as testified to by one of the plaintiffs, was made on Juné 16,1910. The witness says that on that day he called upon defendant and informed him that work had been commenced on the books, and that, as a result of this slight examination plaintiffs were not willing to go on with the examination unless defendant would personally be responsible, and that defendant replied, ‘c I will be responsible. ” The defendant denies that this conversation took place, but on this issue the jury have found in plaintiffs’ favor, and for the purposes of this appeal we accept that finding. The question then remains whether or not, if this conversation took place, it created an enf orcible obligation on the part of defendant. It seems quite clear that the promise, if made as plaintiffs allege, was obnoxious to the Statute of Frauds as being an oral promise to pay the debt or obligation of another (Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 31, subd. 2), but as the statute was not pleaded it is not available to defendant. That it was not pleaded is doubtless due to the fact that the defendant assumed that the complaint referred to the written contract between plaintiffs and the railway companies. But even if the Statute of Frauds is not available to defendant under the pleadings there still remains the question whether or not defendant’s promise to be responsible for the costs and expenses of the examination is supported by any consideration. There is nothing in the case to indicate, much less to prove, that defendant was personally interested in having the companies’ books examined other than his interest as an officer and stockholder; that is to say, thatl he had any special or individual interest not common to otheP officers. The only consideration that is urged as sufficient to sustain his personal undertaking to pay for plaintiffs’ services is the suggestion that plaintiffs went on and completed the work in reliance upon his promise, whereas, but for that, they would have discontinued their work. This suggestion loses sight of the fact that, when the alleged promise was made, the plaintiffs had already undertaken by contract with the railway companies to do this very work, and that they did nothing and no more after defendant’s promise than they had already agreed to do. Their letter of June fourth to defendant as president stated that we will undertake to make an examination of the accounts of your company,” etc., upon certain terms which were specified. Defendant’s reply was a distinct acceptance of the proposition, and plaintiffs started upon the work before the alleged promise by defendant personally was made. Here was a complete and binding contract between plaintiffs and the railway companies which plaintiffs were bound to perform, so that it is entirely accurate to say, that plaintiffs did no more in reliance upon defendant’s promise than they were already bound to do' by their contract with the railway companies. It may be, as respondents argue, that if they had refused to carry out their contract the railway companies could not have recovered substantial damages, but they certainly would have been entitled to at least nominal dam- ' ages, and the binding obligation of a contract does not depend upon the amount"of damages that may be occasioned by its breach. It clearly appears, and no contention is made to the contrary, that at the time the alleged promise of June sixteenth was made, the railway companies or either of them, had done nothing to breach the contract or to furnish just ground for a refusal to perform on the part of plaintiffs. If plaintiffs had on June sixteenth refused to go on with the work they had undertaken, it would have been a distinct and unexcused breach on their part. If then plaintiffs agreed to do no more, and in fact did no more than their contract with the railway companies obligated them to do, their continuance and completion of the work afforded no consideration for defendant’s alleged promise. Nothing is better settled than that the doing of an act which a party is under á legal obligation to perform cannot constitute a consideration for a new contract. (Arend v. Smith, 151 N. Y. 502, 505; Vanderbilt v. Schreyer, 91 id. 392, 400; Carpenter v. Taylor, 164 id. 171, 1177.) It appears to be clear, therefore, that even if defendant / made the promise alleged there was no sufficient consideration * to support it, and that, as was said in Arend v. Smith {supra), “the promise of the plaintiff was a naked engagement that involved no legal obligation, but rested wholly upon the integrity and good faith of the one who made it, with no power in the courts to compel performance or to award damages for non-performance. ” The trial justice evidently appreciated this weakness in the plaintiffs’ case for he charged the jury in effect that it might find that the contract between plaintiffs and the railway companies had been abrogated at the conversation of June sixteenth. This was duly excepted to, and was erroneous, because there was no evidence to show, and there was no claim made by plaintiffs, that the original contract with the railway companies had ever been abrogated. All that was claimed was that defendant had agreed to be personally liable for the fulfillment by the railway companies of the original contract. The plaintiffs, therefore, made out no case for submission to the jury and the defendant’s motion for a dismissal should have been granted.

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

Clarke, P. J., McLaughlin, Dowling and Davis, JJ., concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  