(dissenting). — -In my opinion plaintiff’s own testimony, and that, of his witnesses, when interpreted in the light of all the surrounding circumstances, failed to show any such promise on the part of the defendant as that upon which the complaint was founded. Such testimony, when so interpreted, shows that any statement as to the repayment of the moneys which the plaintiff should advance to the men who had been employed upon the building, and for which this action is brought, was made in view of its being taken from the amount which would be coming to the contractor or his bondsmen upon the completion of the buildings in aecoi’dance with the terms *548of the contract. Plaintiff’s own testimony is to the effect that that was one of the things which were discussed during the interview when it was alleged the promise was made, and that prior to such alleged promise the defendant had stated that there was enough money unpaid upon the contract to complete the building, and that it was after such statement that defendant said what he did about the repayment of the money which the plaintiff should advance to the men to induce them to remain upon the work. Interpreting the alleged statement of the defendant in the light of the subject matter under consideration, there is not enough shown thereby to authorize a finding by the jury of an absolute promise to pay. The most that could be found therefrom was a promise to pay if the work on the building was continued to completion by or on behalf of the contractor or his bondsmen. To my mind there was nothing said in the entire conversation that tended to show that it was intended on the. part of the owner to relieve the bondsmen from their responsibility or on their part to be relieved.
It follows that if any liability was established as against the defendant it was one sounding in tort, and not upon contract, and could not have been recovered for under the complaint in this action. I think that the judgment should be reversed.