A. Schwoerer & Sons, Inc. v. Stone

Ingraham, J.(dissenting):

So far as appears from this record, the defendant had no personal interest in the performance of this contract. He appears to have been an officer of a corporation who had a mortgage upon the prop erty that was being improved; but the record certainly shows no personal-interest which would be benefited by the performance of the plaintiff’s contract. The' .plaintiff having a contract with, a contractor to-erect a building upon the premises described, who was in financial difficulties, had refused to carry out his contract. He saw the defendant, stated his position, and the defendant asked him what lie would do the work for if the defendant promised to pay the amount due. According to the plaintiff’s testimony, an agreement was then arrived at by which the defendant would pay the anfount of a new contract to be made with the original contractor. Subsequently a new contract was made, not between the plaintiff and the defendant, but between the plaintiff and the original contractor, which contained no reference to the defendant, and under which the plaintiff furnished the materials and performed the work that lie had undertaken to do.

I think that all prior negotiations were merged in this new contract when it was executed. The only question presented is whether, subsequent to the execution of the new contract, there *801was any agreement with the defendant to pay the amount due to the plaintiff which was enforcible. After this second contract was made, the daté of which was the 28th of March, 1905, the plaintiff testified that he saw the defendant and showed him the contract, and stated that the plaintiff had reduced the price $500 for. the omission of a stone cornice; that defendant said he would pay plaintiffs as soon as they wanted any money, to try to make the payments not less than $1,000; that plaintiff then told the defendant that he would not work under this .contract, and asked the defendant to give a letter in writing; that defendant said that he could not do that, because he was interested in the loan, and if he did that, the other mechanics in the building would come and want their payments in that way, and he did not propose to pay them ; that defendant then said : Go ahead and I will see that you get your money.” He said : I will pay you for everything you do on that job.” Here a contract had been made with the Wolff Construction Company to do the work, by which the Wolff Construction Company agreed to pay to the plaintiff the sum of $2,250, and that such sum shall be paid in current funds by the Wolff Construction Company to the plaintiff as specified. This was an absosolute obligation of the Wolff Construction Company which was in existence when the plaintiff went to the defendant, and the defendant said he would pay the plaintiff as soon as the plaintiff wanted any money; that he would pay the plaintiff for everything the plaintiff did on that job. It seems to me that this is clearly to answer for the debt of the Wolff Construction Company, and not an original contract made by the defendant to pay for the work done by the plaintiff upon this building. The courts have often gone far to prevent injustice. where the- owner of real property, vitally interested in completing a building in course of construction, had made an independent contract to pay to a person furnishing labor and materials for the building. In this case, however, where a contract has just been made and no work performed, and the only agreement was to pay to a contractor the amount of his contract by a person who was not proved to have any beneficial interest in the property, I do not think that it can be said to be an original contract, but must be construed to be a promise to answer for the debt *802or obligation of the Wolff Construction Company, and thus within the Statute of Frauds.

In the casé, of Raabe v. Squier (148 N. Y. 81) it was held that the Statute of Frauds was not applicable to the contract there under consideration, and the reasons given were because “ the promise, in so far as it is here sought to be enforced, related to the indebtedness thereafter to be created. The promisors were th¿ owners of the buildings in process of construction. The woodwork furnished by the plaintiffs was for their benefit. The contrae toi’S had neglected to pay the plaintiffs for the material furnished, and they refused to deliver more, as they had the right to do. Under such circumstances the promise was made,, and ft- was in reliance upon the promise that the plaintiffs delivered the rest of the woodwork. The promise thus made was. original and founded upon a new consideration, that of the goods. It- was beneficial, as we have seen, to the promisors.” In Reisler v. Silbermintz (99 App. Div. 131) the promisor was the owner of the building, and the contract that was made was for alterations in it.

In both these cases, which have been sustained as on an original promise, the promisor was beneficially interested in the performance of the contract, and stress in both cases is laid upon that condition. To make such a promise original, it seems to me there must be a new consideration which was beneficial to the promisor, and in addition to wdiat the promisee was bound to perform by .reason of his original contract. Here the plaintiff had entered into a contract with - the Wolff Construction Company. The Wolff Construction Company had not in any way violated its contract, and the plaintiff was under legal obligation to perform that contract. He went to the defendant with that contract and the defendant agreed to pay him for the materials and what he furnished under it. In both Raabe v. Squier (supra) and Reisler v. Silbermintz (supra) the original contractors had failed to perform their contract-, and thus the promisee was absolved from carrying it out. Under those circumstances he went to the owner of the building, who was beneficially interested in having the work performed, and the owner of the building, to secure that benefit, promised that what was furnished in. future he would pay for, making a new and independent contract to furnish work and materials for his, the promisor’s, bene*803fit. In this case, however, the plaintiff had a contract with the Wolff Construction Company, which he was bound to perform. ¡Nothing had happened to discharge him from his obligation to the Wolff Construction Company, and whatever promise the defendant made was simply to pay what the Wolff Construction Company had agreed to pay and for what the plaintiff had agreed to perforin upon the promise of the Wólff Construction Company to pay. It seems to me that a contract made under such circumstances cannot in any sense he said to be a new or original contract. It was not beneficial to the defendant, and it lacked the essential elements, namely, a beneficial interest of the promisor in the performance of the contract and furnishing the labor and materials on the new promise, which, but for that, he was under no obligation to furnish, which are necessary to establish a new and independent contract. I think, therefore, that the judgment was right and should be affirmed.

Scott, J., concurred.

Judgment reversed,, new trial ordered, costs to appellant to abide event.