Page images
PDF
EPUB

Mountstephen v. Lakeman.

1871

that he was authorized by the board to make such request; that *plaintiff did the work accordingly, but defendant turned [197 out not to be authorized, and plaintiff was unable to make the board pay.

Second count: Alleging defendant's promise to be that he would procure a contract from the board, whereby they should be bound to pay for the work.

Money counts: For work and labor, &c.

Count, added at the trial, alleging defendant's promise to be that, in consideration that plaintiff would do the work for the board, defendant promised to pay for the work, if the board should at any time refuse to pay.

Pleas to the money counts: Never indebted, and to the other counts, 1. That defendant did not promise as alleged, 2. That plaintiff did not do the work at defendant's request as alleged.

At the trial before Kelly, C. B., at the Devon Summer Assizes, 1870, the following facts were proved:-The defendant was chairman of the Brixham Local Board of Health. The plaintiff, a builder and contractor, was employed, in 1866, by the board to construct certain main sewage works in the town. On the 19th of March, 1866, notice was given by the board under the Public Health Act, 1848 (11 & 12 Vict. c. 63), s. 69, to the owners of certain houses to connect their house drains with the main sewer within twenty-one days. Before the expiration of the twenty-one days, Robert Adams, the surveyor of the board, proposed to the plaintiff that he should construct the connections between the house drains and the main sewer. The plaintiff said that he was willing to do the work if the board would see him paid. On the 5th of April, that is, before the expiration of the twenty-one days, the construction of the connections was commenced by the plaintiff.

The plaintiff stated in evidence that on the day on which the construction of the connections was commenced, and about an hour previous to the commencement, he was leaving Brixham with his carts and men, after the completion of the main sewer, when Adams stopped him, and requested him not to go away as there was more work to be done. The plaintiff asked who was to be responsible for the payment, and Adams said that the defendant was waiting to see the plaintiff about it. The plaintiff then had an interview with the defendant, at which the

1871

Mountstephen v. Lakeman.

following conversation took place: The defendant said, "What 198] objection have you *to making the connections? Plaintiff said, "I have none; if you or the board will order the work or become responsible for the payment." The defendant replied, "Go on, Mountstephen, and do the work, and I will see you paid."

The plaintiff constructed and completed the connections in question in the months of April and May, 1866, under the general superintendence of the surveyor of the board; and the plaintiff, on the 5th of December, 1866, sent in an account to the board debiting them with the amount. The board disclaimed responsibility on the ground that they had never entered into any agreement with the plaintiff, nor by any resolution or order authorized any officer of the board to agree with him for the performance of the work in question.

The plaintiff, for the first time, on the 20th of November, 1869, through his solicitor, applied to the defendant for payment of the work, and the defendant having refused to pay him,

commenced this action.

At the close of the plaintiff's case, the counsel for the defendant claimed a nonsuit on the ground that there was no evidence of any liability on the part of the defendant. The learned judge declined to nonsuit, stating his opinion there was evidence to support a count in the form above given, and which he gave the plaintiff leave to add.

The defendant's case was then entered upon, and the defendant denied that any conversation of the kind deposed to by the plaintiff had ever taken place.

The Chief Baron left it to the jury to say whether the conversation did take place; and the jury returned a verdict for the plaintiff for the amount claimed.

Leave was reserved to the defendant to move to enter a nonsuit, if it should appear that there was no evidence, either upon the original declaration or upon the declaration as amended, which ought to have been left to the jury.

The defendant obtained a rule accordingly, to enter a nonsuit, on the ground that there was no evidence of any original liability on the part of the defendant to the plaintiff for the work to be done; or for a new trial, on the ground that the verdict was against the evidence.

Mountstephen v. Lakeman.

1871

*The Court of Queen's Bench afterwards made the rule [199 absolute to enter a nonsuit, on the ground that the defendant's engagement did not amount to an undertaking to be primarily liable for the work; but only to a promise, that if the plaintiff would do the work on the credit of the board, the defendant would pay if the board did not; and that this was a promise to be answerable for the debt of another within s. 4 of the Statute of Frauds, and not being in writing was void (1).

The question for the Court of Appeal was, whether the defendant is entitled to have a nonsuit entered.

Nov. 28. A. Charles (Lopes, Q. C., with him), for the plaintiff.. The decision of the Court of Queen's Bench, making the rule absolute to enter a nonsuit, was erroneous. All that was left to the jury was, whether the conversation spoken to by the plaintiff took place or not: this they found in the affirmative; and therefore the question is, what was the contract which this conversation evidenced, coupled with the other circumstances of the case? There was ample evidence from which the jury might have found either an original liability in the defendant, in which case the plaintiff would be entitled to a verdict on the added count, or the money counts; or else there was evidence to sustain a verdict on the first and second counts. But the main argument in the court below proceeded on the question under the Statute of Frauds. The Court were wrong in holding such a promise to be within s. 4 of the Statute of Frauds. In order to make a contract a promise to be answerable for the debt, default, or miscarriage of another, there must be a debt, default, or miscarriage of a third person, for which that person has already or does thereafter become liable, and it is not sufficient, as the Court of Queen's Bench held, that the promiser and promisee both expect that by possibility a third party will eventually become liable. [On'this point he cited the following authorities: Chitty on Contracts, 8th ed., p. 475; 2 Parsons on Contracts, p. 301; Brown on the Statute of Frauds, ss. 11, 155, 156 (2d ed.); Birkmyr v. Darnell (2); Read v. Nash (3); Kirkham v. Marter (); Harris v. Huntbach (5); Hargreaves *v. Par- [200

(1) Law Rep., 5 Q. B., 613.
(2) 1 Sm. L. C., 274 (6th ed.).

() 1 Wils., 305.
(4) 2 B. & A., 613.

(*) 1 Burr., 373.

1871

Mountstephen v. Lakeman.

sons (1); Couturier v. Hastie (2); Cripps v. Hartnoll (3); Green v. Cresswell (); Williams' Notes to Saunders, pp. 230-234; and Goodman v. Chase (5); but the judgment of the Court renders it unnecessary to do more than refer to them.] Secondly, the promise of the defendant, coupled with the surrounding circumstances, proved the first or second counts within the principle of Collen v. Wright (6), Simons v. Patchett (7), and Cherry v. Colonial Bank of Australasia (8).

Nov. 29. H. T. Cole, Q.C. (Pinder with him), for the defendant. The contract to be deduced from the conversation, coupled with the position of all parties at the time, is, that the owners or occupiers of the houses were the parties to be primarily liable, and the promise of the defendant, "will see you paid, amounted to no more than a guarantee; Keate v. Temple (9). Why should the defendant make himself primarily liable? The conversation could only import what the judges in the court below said it did. [He cited notes to Birkmyr v. Darnell (10); Throop on Verbal Contracts, vol. i., cc. 7 and 8, pp. 214, 256; Peckham v. Faria (1).]

Charles, in reply. The supposed liability of the householders would put the contract of the defendant precisely on the same footing as the supposed liability of the local board, which was assumed by the Court of Queen's Bench; and the arguments already addressed to the latter state of facts, are equally applicable if the supposed liability be that of the householders; in either case it is not within the Statute of Frauds.

[WILLES, J. Suppose this to be put down in writing, but not signed by C.: "A. having ordered a house to be built by B., B. is desirous of having the security of some third person, and C. is willing to become surety for A., and requests B. to go on with the house accordingly." B. builds the house; but it turns out, when the house is built, that the order supposed 201] by B. and C., to *have been given by A., was not by A., but by X., who had no authority from A., and, consequently,

(1) 13 M. & W., 561, 570.

(2) 8 Ex. 40; 22 L. J. (Ex.), 97.

() 4 B. & S., 414; 32 L. J. (Q. B.), 381.

(*) 10 A. & E., 453.

(*) 1 B. & Ald., 297.

(°) 8 E. & B., 647; 27 L. J. (Q. B)., 215. (7) 7 E. & B., 568; 26 L. J. (Q.B.), 195.

(*) Law Rep., 3 P. C., 24.

() 1 B. & P., 158.

(10) 1 Sm. L. C., 274 (6th ed.).

(1) 3 Doug., 13.

Mountstephen v. Lakeman.

1871

there was no liability of A. The contract would be void, independently of the Statute of Frauds, because C. never meant to become liable unless A. was primarily liable; both parties being mistaken, there is no contract at all.]

In the present case there was no such common error; both parties knew that neither the owners nor the local board had given any orders at the time the conversation between the plaintiff and defendant took place.

WILLES, J. [after going minutely through the facts of the case.] At the time the conversation took place it was known, both to the plaintiff and the defendant, that the owners were not liable, and had not interfered in the matter. The plaintiff did not doubt the responsibility of the board in respect of ability to pay, and he wanted no guarantee for this work any more than for the work which he had already done for the board; but he knew he had not got the order of the board, and so did the defendant, although the contrary seems to have been assumed by the Court of Queen's Bench. Therefore, it is pretty clear that the meaning of the conversation could not be that the defendant would guarantee payment by the board; but it might mean that he had, or would obtain, the order of the board, in which case the principle of Collen v. Wright (1) would apply, and the defendant might be liable on the first or second count. But it was competent to a jury to find,— and I need go no further than that, though I think it would have been the proper conclusion to draw,- that the meaning of the answer of the defendant was not "I will be liable as surety for the board, if they become liable to you," making the contract one of suretyship; but "Whether the board be liable or not, do the work and you shall be paid; " that is, "I undertake to pay you for the work, unless you shall happen to be paid either by the board or by the owners, assuming they come forward and pay, though they are not liable." That appears to me to be the result of the conversation. It is a bargain, therefore, by the defendant to pay for the work, though it was known that there was no person liable at the time, and whether a third person should become liable in future or not, *that is, whether or not there was, or [202 might be, a third person who could be liable for a debt, or (1) 8 E. & B., 647; 27 L. J. (Q. B.), 215.

« PreviousContinue »