I find myself unable to agree with the majority of the court, that the testimony of Tryon, as to his conversation with Corbin, and subsequently with Arnold, respecting the agreement of the company to pay for extra work, is admissible.
Mr. Prescott was one of the directors of the defendant company, its treasurer, and its general manager of the work upon which the extra work was claimed to have been done, and was known so to be by the plaintiff. In view of a change in the location of the picker-house the plaintiff, who was doing the mason work for one Arnold, the contractor, informed Mr. Prescott that more work and material would be necessary to complete the work, and he should expect more pay. Mr. Prescott refused to pay for any extras, whereupon the plaintiff informed him that he should be obliged to stop work, and that he could not give the company that *Page 182 amount of extra work. Mr. Prescott replied that he could stop work, and that he would not pay him for any extras.
Directly afterwards the plaintiff went to see Mr. Corbin, who was also one of the directors of the defendant corporation and had taken some part in arranging the location of the picker-house, and told him how the matter stood and what Prescott had said. The plaintiff was allowed to testify, against objection, that Corbin replied "that if the facts were as he stated, if there was extra work he ought to have pay for it; that they were intending to have a meeting of the directors of the company at noon that day, and that he would then bring the matter up and would send word to him of the result by Arnold, and that Corbin further said that he did not want the work stopped, and then and there told the plaintiff to go ahead and the company would pay.
The plaintiff was further permitted to testify, against the defendant's objection, that after having this conversation with Corbin Mr. Arnold went to the defendant's office at the hour named and stated to the plaintiff on his return that the company would pay him for the extra work and that he was to go ahead.
All this was denied by the defendant and by Mr. Arnold.
The question is — was the testimony admissible? I cannot see that it was. The purpose of it was to establish a promise on the part of the defendant to pay for the extra work. The agent of the defendant had distinctly declined to pay for it.
Corporations can contract only through agents, and there is no hardship here in applying the rule, because the plaintiff knew who was the defendant's agent and appealed to him in the first instance.
If the defendant company had held a meeting, as the plaintiff testified Corbin told him they were going to, and at such meeting had agreed to pay the plaintiff for extra work and that he was to go ahead, as the plaintiff testified that Arnold reported, then, upon proof of such action, the defendant would have been bound. But can the fact of the meeting of a corporation and the nature of *Page 183 the business transacted at such meeting be proved in this way? Is it anything more than hearsay at the best? The plaintiff hears from Corbin that there is to be a meeting, and afterwards from Arnold, who is agreed upon, not between the plaintiff and defendant, as a messenger, but between Corbin and the plaintiff, that the company would pay him for extra work, etc. It seems to me dangerous to expose the defendant to liability in such a manner. If the defendant held a meeting and voted to have the plaintiff go ahead with the extra work and to pay him therefor, it could certainly be proved in the ordinary way.
It does not meet this point of the case to suggest that the defendant had the benefit of the extra work and ought to pay for it; and that the extra work was done under its observation and within its knowledge. If the defendant distinctly declined to pay for extra work, insisting, as it did in this case, that the work claimed as extra was work which it was the duty of the principal contractor to do under his contract, and the plaintiff thereafter continued his work without further concession on the part of the defendant, the latter had the right to assume that it was continued under the direction of the principal contractor without expectation of extra pay from the defendant.
There is nothing therefore in the case which to my mind relieves the pressure of the difficulty already very briefly suggested, that the evidence already referred to was not admissible to establish or assist in establishing the liability of the defendant for the extra work.