If the agreement between Hall & Green of the one part and the plaintiffs of the other .part, for repairing the old machine and making a new one had been reduced to writing, and signed by the parties, no lawyer could seriously insist that Van Wyck could be made liable upon it by reason of his purchase of the interest of either Hall or Green in the old or new planing machine. Where the contract is verbal, and the parties to it are clearly ascertained, I am not aware of any rule of law that will authorize a recovery against a person not originally a party to such contract.
When the Court of Appeals held that Van Wyck was liable for the work done by the plaintiffs upon the machines in question, it must be understood as holding, either that there was no contract between the plaintiffs and Hall & Green, or that it was abandoned by mutual consent and a new one entered into between the defendant and Hall and the plaintiffs.
It is not material which view of the law the court may have taken, so long as it is quite clear that it intended to hold that the defendant had rendered himself liable for the work, labor and materials for which this action is brought, jointly with Hall, whose partner he concededlv was.
The state of facts presented to the Court of Appeals is not changed by the second trial, and we must hold, therefore, that Van Wyck is liable, jointly with Hall, for the work, labor and materials in question.
As to the rescission of the contract, by reason of the taking back of the machine, constructed for the defendants, I entertain no doubt whatever. The plaintiffs delivered the machine to either Hall & Green or to Hall & Van Wyck ; it was put upon their premises, and actually^ used by them; after this it was too late for the plaintiffs to assert a lien as vendors, there being no condition annexed to the delivery of the machine.
When they repossessed themselves of it with the assent of *642Van Wyck, the contract between them was rescinded, and thereafter Van Wyck ceased to be liable upon the contract for its construction.
[New York General Term, November 5, 1866.There are no facts proved on the second trial, which take the case out of the rule of law stated by Wright, J. in his opinion, in the Court of Appeals. I think we are required, in order to give effect to the law as declared in that opinion, to hold that the contract between the plaintiffs and Van Wyck was rescinded, and that the defendant is not legally liable thereon.
The judgment should therefore be reversed and a new trial ordered ; costs to abide the event,
Judgment affirmed.
Clerke, Ingraham and Mullin, Justices.]