Cases have frequently arisen where a subcontractor or material man refuses to continue the performance of his contract because of the actual or prospective failure of the general contractor to make agreed payments; and to induce further performance by the subcontractor or material man the owner of the building promises to pay him for so doing. Where such a promise by the owner is absolute in terms and not conditional on default by the general contractor, the promise has almost universally been held original and not within the statute.52 On principle, however, distinctions should be observed.
50 Mine & Smelter Supply Co. v. Stockgrowers' Bank, 173 Fed. 869, 98 C. C. A. 229; Casey v. Miller, 3 Ida. 667, 32 Pac. 196; Beitman v. Birmingham Paint ft Glass Co., 186 Ala. 313, 64 So. 600; Indiana Mfg. Co. v. Porter, 76 Ind. 428; Colvin v. Newell, 8 Ky. L. Rep. 969; Clay Lumber Co. v. Hart's Branch Coal Co., 174 Mich. 613,140 N. W. 912; Holt v. Doliarhide, 61 Mo. 433; Woods p. Davis, I Tex. App. Civ. Cas., Sec. 952; Repair v. Krebs Lumber Co., 73 W. Va. 139, 80 3. E. 140. See also supra, Sec. 469.
51 Anatey v. Marden, 1 B. & P. N. R. 124; Humphreys v. St. Louis, etc, R. Co., 37 Fed. 307; Norman v. Bullock County Bank, 187 Ala. 33, 86 So. 371; Gist v. Harkrider (Ark.), 16 S. W. 187; Conger p. Cotton, 37 Ark. 286; Hayward v. Gunn, 82 111. 385; Collins v. Stanfield, 139 Ind. 184, 38 N. E. 1091; Hearing p. Dittman, 8 Phila. 307; Stillman v. Dresser, 22 R. I. 389, 48 Atl. 1; Lampson v. Hobart, 28 Vt 697; Hoeflinger v. Stafford, 38 Wis. 391.
52 Sext v. Geise, 80 Ga. 698, 6 S. E.
In many of these cases the general contractor had abandoned his contract, and the subcontractor or material man in continuing performance no longer was performing by virtue of his contract with the general contractor, that contract being justifiably abandoned. The new promise of the owner of the building, in such a case, is not, so far as future work is concerned, to pay the debt of the general contractor. The latter will owe no debt for this performance; for it was not rendered in performance of the contract with him, and the promise of the owner is not to pay the debt of the general contractor, though the amount of his own debt may be fixed by the obligation which the general contractor would have incurred had his contract not been abandoned.53
Cases where recovery on an oral promise of the owner have been enforced are, however, not confined to those of the sort just indicated.
In many jurisdictions it seems to be held that even though the contractor still remains liable for the performance of the subcontractor or material man, the latter may enforce an absolute oral promise by the owner to pay for the work or materials. It should be observed in such a case that if the owner promises payment merely from whatever may be due by him to the general contractor, the promise is not within the statute.54 To that extent the new promisor is a primary debtor. What he pays he would have no right to recover over from the general contractor; but if, as is often the case, the original contractor remains liable and the owner undertakes absolutely to pay the subcontractor or material man whatever the services or property of the latter may be worth, irrespective of any balance due the general contractor, the promise is on principle within the statute.55
174; Clifford v. Luhring, 60 111. 401; Schoenfeld v. Brown, 78 111. 487; Gibson County v. Cincinnati Steam Heating Co., 128 Ind. 240, 27 N. E. 612,
12 L. R. A. 602; Cedar Valley Mfg. Co. v. Starbard (Iowa), 89 N. W. 14; Walker v. Hill, 119 Mass. 249; Mclaughlin v. Austin, 104 Mich. 489, 62 N. W. 719; Wilhelm v. Voss, 118 Mich. 106, 76 N. W. 308; Abbott v. Nash, 35 Minn. 451, 29 N. W. 65; Fitzgerald v. Morrissey, 14 Neb. 198, 15 N. W. 233; Bayles v. Wallace, 56 Hun, 428, 10 N. V. S. 191; Parkee v. Stafford, 16 N. V. S. 756; Snell v. Rogers, 70 Hun, 462, 24 N. Y. S. 379; Schults v. Cohen,
13 N. Y. Misc. 638, 34 N. Y. 8. 927; Sinkovits v. Applebaum, 56 N. Y. Misc. 527, 107 N. Y. S. 122; Crawford p. Edison, 45 Ohio St. 239, 13 N. E. 80; Jefferson County v. Single, 66 Pa. St. 202; Corcoran v. Huey, 231 Pa. 441, 80 Atl. 881; Green v. Dallahan, 54 Tex. 281; Howell v. Harvey, 65 W. Va. 310, 64 8. B. 249, 22 L. R. A. (N. S.)
1077; Young v. French, 35 Wis. 1ll; Petrie v. Hunter, 2 Ont. 233. See also Raabe v. Squier, 148 N. Y. 81, 42 N. E. 516; Repair v. Krebs Lumber Co., 73 W. Va, 139, 80 S. E. 140. Cf. Beit-man v. Birmingham Paint & Glass Co., 185 Ala. 313, 64 So. 600; Conti v. Johnson, 91 Vt. 467, 100 Atl. 874.
53 Cases where the general contractor abandoned the contract, are - Clifford v. Luhring, 69 111. 401; Schoeu-feld v. Brown, 78 111. 487; Wilhelm v. Voss, 118 Mich. 106, 76 N. W. 308; Yeoman v. Mueller, 33 Mo. App. 343; Kutsmeyer v. Ennis, 27 N. J. L. 371 (3 Dutch.); Parkes v. Stafford, 16 N. Y. S. 756; Schults v. Cohen, 13 N. Y, Misc. 638, 34 N. Y. S. 927; Desmond v. Schenck, 36 N. Y. App. Div. 317, 55 N. Y. S. 251; Mannetti v. Doege, 48 N. Y. App. Div. 587, 62 N. Y. S. 918; Crawford v. Edison, 45 Ohio St. 239, 13 N. E. 80; Petrie v. Hunter, 2 Ont. 233.
54S.R.H. Robinson & Son Contracting Co. v. Twin City Bank, 103 Ark. 219, 146 S. W. 523, and see infra, Sec.Sec. 459, 479.
55 This was so held in Conti v. Johnson, 91 Vt. 467, 100 Atl. 874. See also Ribock v. Canner, 218 Mass. 6, 105 N. E. 462; Mankin v. Jones, 63 W. Va. 373, 60 S. E. 248, 15 L. R. A. (N. S.) 214. The case is analogous to those cited infra, Sec. 459, where one who receives property to be applied to the payment of certain indebtedness, undertakes absolutely to pay the debt, not merely to apply the property in his hands. In Boorstein v. Moffatt, 36 Nova Scotia, 81, 86, the court quoting DeColyar on the law of Guarantees, p. 109, said: "Moreover, the question to whom the credit was given, is not an infallible test by which to discover in all cases whether or not the promise falls within the 4th section of the Statute of Frauds. For sometimes it happens that credit is entirely given to the promisor, and yet the promise is within the 4th section of the Statute of Frauds. This is the case wherever the promise has not the effect of discharging the original debtor."
Lord Ellen borough in Barber v. Fox, 1 Stark. 270, said: "This was the inchoate business, and debt of another, and if the defendant had promised in writing, he would have made himself liable - without a promise in writing he is not liable."
In Wilhelm v. Voss, 118 Mich. 106, 107, 76 N. W. 308, the court said:
"The fact that Wilhelm had made a contract with Van Bogaert & Co. to do this work would not necessarily render invalid a subsequent contract with Voss to do the same work, but both of these alleged oral promises to pay for this work could not be valid at one and the same time. Unless the contract with Van Bogaert ft Co. was abandoned by Wilhelm, so that there would remain no right to a claim for compensation for the work when done, as against them, the promise alleged of Voss was collateral, and void under the statute.
The right of the plaintiff to recover against the defendant must depend upon the actual state of affairs at the time the work was done. If it was done in pursuance of and under the contract with Van Bogaert & Co., the performance created an obligation against Van Boagert ft Co., and not against Voss; while, if the plaintiff repudiated the contract made with that firm, so that, although he plastered the house, it was done under a different arrangement, and gave rise to no obligation upon the part of Van Bogaert & Co. to pay, the
A similar promise is not infrequently made to a subcontractor or a material man by some one other than the owner of the premises. Thus a surety for the general contractor, in order to save himself from direct liability to the owner, may promise to pay for work or materials when the general contractor has made default or is likely to do so. If the subcontractor or materialman in such a case retains a claim against the general contractor, the new promise, on principle, is a promise to pay the debt of another; since should the new promisor make the promised payment, he would be subrogated to a claim against the general contractor. If, however, the liability of the general contractor was abandoned before the consideration was furnished, the promise of the surety is not within the statute. So, if the new promise is only to make payment from securities in the promisor's hands to secure him from liability, an oral promise is valid.56 The same reasoning is applicable where the new promise is (riven by a tenant57 or mortgagee58 as where a defendant would be liable for hie promise to pay for the work, if he made such promise." See also Conti v. Johnson, 91 Vt. 407, 100 Atl. 874; Bond v. Treahey, 37 0. Can. Q. B. 360. But in Almond v. Hart, 46 N. Y. App. Div. 431, 433, 61 N. Y. 8. 849, the court said: "The test is whether the person sought to be held liable is primarily so, or only in case of the default of another, and added. . . .
"The fact that the liability against Phippin, the contractor, may remain unaffected by the promise of the defendants does not bring this within the inhibition of the statute. Clark v. Howard, 180 N. Y. 232, 239, 44 N. E. 695; Farley v. Cleveland, 4 Cow. 432, 15 Am. Dee. 387; Elkin v. Timlin, 151 Perm. St. 491, 25 Atl. 139." See also Repair v. Krebe Lumber Co., 73 W. Va. 139, 80 S. E. 140.
"The tendency in American cases is to hold the new promisor liable even if his promise in absolute in terms, since the consideration was beneficial to him. Alley p. Torek, 8 N. Y. App. Div. 50, 40 N. Y. 8. 433; Pizzi v. Nardello, 209 Pa. 1,57 Atl. 1100. In Hall d. Lincoln Savings ft Trust Co., 220 Pa. St. 485, 489, 490, 69 Atl. 994, the court said: -
"If a special promise was made by the defendant to the plaintiffs, to see them paid for the performance of work which would be in relief of the obligation of the defendant upon its prior bond, and if this payment was to be made from a fund assigned to, and held by defendant for the payment of subcontractors, clearly, under the authorities, and as a matter of sound principle, the promise would not be within the statute of frauds."
57In Cooper & Polak Works v. Rosing, 85 N. Y. Misc. 409, 147 N. Y.
S. 241, the promise of the tenant was held binding because it was not in terms identical with the obligation of the general contractor, but was to pay a filed sum irrespective of the contractor's liability.
58In Ribock v. Conner, 218 Mass.
5, 105 N. E. 462, the promise of the mortgagee to pay the subcontractor what was due him from the general surety for the general contractor is the promisor. All have a pecuniary interest in the consideration for their new promises, but all may nevertheless be merely promising to pay the debt of another.