
    Trombley & Carrier Company, Appellant, v. Edwin R. A. Seligman, Respondent.
    Third Department,
    June 24, 1909.
    Appeal — stare decisis — when court can modify former decision on second appeal — sale — Statute of Frauds — promise to answer for default of another.
    There is no iron rule which precludes the court on a second appeal from correcting a manifest error in its'former judgment, or which requires it to adhere to an erroneous view of the facts or the law. It may for cogent reasons reverse or modify a prior decision even in the same case, but the cases in which this will1 he done are exceptional and the power should he sparingly exercised. Action to recover the purchase price of lumber, the defenses being, first, that the' material was furnished on the order of an independent contractor, and, second, that any oral promise of the defendant owner to qjay for the same was one to answer for the default or miscarriage of another and void under the Statute of Frauds. Evidence examined, and held, that it should have been left to the jury to say whether1 the contract of sale was' not made directly with the owner.
    Appeal by the plaintiff, the Trombley & Carrier Company, from a judgment of the Supreme Chart in favor of the defendant,, entered in the; office of the clerk of the county of Franklin on the 19th day of November, 1908, upon the dismissal of the complaint by direction of the; court after a trial at the Franklin Trial Term, and also from an order entered in said clerk’s office on the 13th day of November, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.
    The complaint alleged a sale to the defendant of lumber and material that was used in the erection of a cottage upon the lands of the defendant at Lake Placid, and that the. defendant agreed to pay for the same. The answer denied these allegations and alleged that at the times mentioned in the complaint one Joseph B. Williams was engaged in the construction of a cottage, for the defendant under a contract with him ; that by the terms of the contract Williams was to furnish all of the necessary material, and that the material in question was furnished by the plaintiff upon the order and credit of Williams. The defendant .further alleged that the, contract was to answer for the default or miscarriage of Williams and was, therefore, void'under the Statute of Frauds. (See Laws of 1897, chap. 417, § 21.)
    The court held as a legal conclusion from the evidence in the case that the defendant was not a purchaser of the property ; that his promise was within the Statute of Frauds, and dismissed the complaint.
    
      H. P. Coats,, for the appellant.
    
      Francis A. Smith, for the respondent.
   Sewell, J.:

This action has been twice tried. On the first trial the plaintiff recovered. The judgment on appeal to this court was affirmed, but was reversed by the Court of Appeals for an error in the admission of evidence. (Trombleys. Seligman, 116 App. Div. 910; revd., 191 N. Y. 400.) I have not been able to find nor have counsel pointed out any substantial variance in the evidence, from that given upon the first trial, and I think that it is fair to assume that all the material facts bearing upon the liability of the defendant in the present record were in the record on the former appeal. It is urged by the appellant that the judgment should be reversed simply on the strength of our decision upon the former appeal, that it is the law of the case. There is no iron rule which precludes a court from correcting a manifest error in its former judgment or which requires it to adhere to an erroneous view of the facts or the law. It may for cogent reasons, reverse or qualify a prior decision, even in the same case; but the cases in which "this will be done are exceptional and the power should be sparingly exercised. (Oakley v. Asp inwall, 13 N. Y. 500; Cluff v. Day, 141 id. 580.) When a question has been once decided the same parties cannot be permitted to reopen the discussion without great detriment to the public interest, and destroying that respect for the decisions of courts which it is important should be maintained. (Mygatt v. Coe, 142 N. Y. 78; Roberts & Co. v. Buckley, 145 id. 215.)

While it is our duty to follow and abide by our former decision it may be more satisfactory, if not useful, to consider whether tile learned trial court was authorized to take from the jury the question whether the plaintiff furnished the lumber and material to Williams, the contractor, or to defendant, the owner.

It cannot be denied that there was affirmative 'evidence tending to prove that there was an original undertaking on the part of the defendant to pay for the material furnished by the plaintiff.

John Carrier, the plaintiff’s treasurer, testified that he had a conversation with the defendant, before the lumber or material in question was ordered, in which the defendant asked him for the price of the doors and windows, and he replied $651; that the defendant said, “ he would let me know that night whether he accepted it or not.” He also testified that he saw him in the dining room of the ¡Berkeley House about eight o’clock in the evening of that day, and that “ while we were talking Mr. Williams came in, and Mr. Seligman spoke to him about the price of the doors and windows and asked him if he thought that was all right, and Williams said he did,, and that the price was ■ satisfactory. Then Mr. Seligman told me to go ahead and get the stuff out. We then had some further talk about what other material was needed to complete the camp * * * and it was agreed that we were to ship it by team as fast as we could get it out, at an extra charge for the team haul, which I believe was $1.25 a thousand; the price for ceiling was $30.00 a thousand, delivered. Mr. Seligman said that he wanted the stuff in a hurry, even at the added expense of getting it there. He was anxious to get the camp finished. He then said he would like to speak to Mr. Williams a moment, and he would see me later outside. I went out-into the office and waited for him there. In a few'niimites lie came out with Williams and said to me,6 When this stuff is delivered Mr. Williams will give yon orders on me for it, and I will pay them.’ I told him that I did not think the orders were necessary; that we would not know until the work ivas completed liow much it would be, and when it was done I would render him file bill.”

The witness- also testified that during the conversation in the hotel Seligman' said, ■ “ I will be responsible for this; ” that the material was charged "to the defendant upon the plaintiff’s books; that11 there was never any talk between Williams and myself about furnishing thesp goods, except as to prices which we would furnish such goods for,” and that he < did not know that Williams was a contractor until sometime after the material had been delivered.

The evidence of Carrier as to the conversation and agreement in the hotel was corroborated by Williams. He- testified that the defendant said amdng other things: “ Carrier, I want to get this stuff there; I don’t want any expense spared i-n getting it there. It has got to be hurried through and you see that I get the lumber and I will be responsible for all material and lumber that goes over there.”

It was not made to appear that Williams made a contract with the plaintiff for the material, or that there was an existing indebtedness or obligation on his part at the .time the defendant’s promise was made, to which it could be collateral.

I think the evidence was, at least, as consistent with the- theory •of a Sale to the "defendant as to the contractor, and the jury might have properly found that the defendant was the principal debtor, and his agreement was to discharge his own obligation. It follows that the complaint should not have been dismissed, and that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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