Alessandrini v. Mullins

• Decision Date: 10 September 1941
• Docket Number: Record No. 2440.
• Citation: 178 Va. 69
• Parties: JOHN J. ALESSANDRINI, TRADING AS THE CHARLESTON TILE AND MARBLE WORKS v. GEORGE W. MULLINS.
• Court: Virginia Supreme Court

Page 69

178 Va. 69

JOHN J. ALESSANDRINI, TRADING AS THE CHARLESTON TILE AND MARBLE WORKS v. GEORGE W. MULLINS.

Record No. 2440.

Supreme Court of Virginia, Staunton.

September 10, 1941.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.

1. NEW TRIALS — Setting Aside Verdict — Code Section 6251 — Power Conferred on Trial Court. — While section 6251 of the Code of 1936, permitting a trial court to set aside the verdict of the jury and enter judgment in favor of the defendant, is a salutary enactment, it does not confer arbitrary power upon a trial court to set aside a verdict rendered by a jury. The power can only be exercised where the verdict is plainly contrary to the evidence, as the only office of the statute is to test the sufficiency of the evidence.

2. FRAUDS, STATUTE OF — Promise to Answer for Debt of Another — Original and Collateral Promises — When New Party Is Surety in Statute. — Every collateral promise to answer for the debt, default or misdoings of another person, is within the fourth clause of the statute of frauds, section 5561 of the Code of 1936, and void if not in writing; original undertakings need not be in writing, not being within the statute.

3. FRAUDS, STATUTE OF — Promise to Answer for Debt of Another — Original and Collateral Promises — When New Party Is Surety or Guarantor. — If the original contractor remains liable and the undertaking of the new party is merely that of surety or guarantor, the undertaking of the latter is collateral and within the fourth clause of the statute of frauds, section 5561 of the Code of 1936.

4. FRAUDS, STATUTE OF — Promise to Answer for Debt of Another — No Particular Form of Words Necessary to Show Original Promise. — In determining whether a promise is to answer for the debt, default or misdoings of another within the fourth clause of the statute of frauds, section 5561 of the Code of 1936, no particular form of words is necessary to show an original promise or conclusion as to the intention of the parties.

5. FRAUDS, STATUTE OF — Promise to Answer for Debt of Another — Original and Collateral Promises — Intention of Parties Governs. — In ascertaining to whom credit was extended, in determining whether a promise is within the fourth clause of the statute of frauds, section 5561 of the Code of 1936, relating to a promise to answer for the debt, default or misdoings of another, the intention of the parties must govern. This intention should be ascertained from the words used in making the promise, the situation of the parties and all of the circumstances surrounding the transaction. The real character of the promise does not depend altogether on the form of the expression, but largely on the situation of the parties; and the question is always what the parties actually understood by the language — whether they understood it to be a collateral or a direct promise.

6. FRAUDS, STATUTE OF — Promise to Answer for Debt of Another — Statute Cannot Be Used as Shield against Actual Obligations. — The fourth clause of the statute of frauds, section 5561 of the Code of 1936, relating to a promise to answer for the debt, default or misdoings of another, contemplates the mere promise of one man to be responsible for another, and cannot be interposed as a cover and shield against the actual obligations of the defendant.

7. FRAUDS, STATUTE OF — Promise to Answer for Debt of Another — Original and Collateral Promises — Oral Promise of Owner to Pay for Material and Labor — Case at Bar. — In the instant case, an action to recover for material furnished and labor performed in laying a hotel floor, defendant contended that the alleged promise was to pay the debt of another contractor with whom defendant had entered into a contract to erect a hotel building, and that not being in writing it was void under the fourth clause of the statute of frauds, section 5561 of the Code of 1936, relating to a promise to answer for the debt, default or misdoings of another. The evidence of plaintiff, denied in toto by defendant, showed that defendant entered into a written contract with the other contractor but because of delay in the work notified such contractor that he would pay the materialmen and laborers directly for material furnished and labor performed. The other contractor requested plaintiff to submit prices on material and labor for the floor and informed plaintiff that defendant would pay for the materials and labor. Plaintiff sent his workmen to the hotel site with instructions not to perform the work unless the defendant agreed to pay. Defendant being absent from the site, plaintiff's workmen began the work and upon defendant's arrival he was informed by plaintiff's agent that the work would not be completed unless he agreed to pay for the same. Defendant stated to the agent that he would pay. When the material was first brought to the hotel it was refused, not by the other contractor but by defendant's inspector and the color was changed to conform to the inspector's requirements. The other contractor was not introduced as a witness to deny the statements of plaintiff. The jury returned a verdict in favor of plaintiff.

Held: That the verdict resolved all conflicts in the evidence in favor of plaintiff and, consequently, it established that the promise relied upon was an original promise and, therefore, the statute of frauds was not applicable.

Error to a judgment of the Circuit Court of Buchanan county. Hon Alfred A. Skeen, judge presiding.

The opinion states the case.

S. H. & George C. Sutherland and R. E. Williams, for the plaintiff in error.

H. Claude Pobst and Marjorie Coleman, for the defendant in error.

CAMPBELL, C.J., delivered the opinion of the court.

This action at law was brought by plaintiff in error to recover of George W. Mullins and Rachel V. Mullins the principal sum of $623, the amount alleged to be due plaintiff by reason of material furnished and labor performed in the laying of a terrazo floor in the hotel building of defendants, situated in the town of Grundy, Virginia.

There was a trial by a jury, which resulted in a verdict in favor of the plaintiff against the defendant, George W. Mullins.

Upon motion of the defendant, the trial court set aside the verdict of the jury and entered final judgment in favor of the defendant. From that judgment a writ of error has been awarded.

It was the contention of the defendant that the alleged promise was a promise to pay the debt of Cline Brothers with whom defendant had entered into a contract to erect the hotel building, and that not being in writing, it was void under the statute of frauds. This contention was sustained by the trial court.

The sole question for our determination is whether the evidence introduced by the plaintiff is sufficient to establish an original independent undertaking on the part of the defendant to pay for the work done by the plaintiff.

The action of the trial court in setting aside the verdict of the jury and in entering judgment in favor of defendant was an exercise of the power conferred by section 6251 of the Code of Virginia. This section is a salutary enactment, but it does not confer arbitrary power upon a trial court to set aside a verdict rendered by a jury. The power can only be exercised where the verdict is plainly contrary to the evidence, as the only office of the statute is to test the sufficiency of the evidence. Norfolk, etc., Ry. Co. T. W. Thayer Co., 137 Va. 294, 119 S.E. 107.

Section 5561 of the Code, known as "The Statute of Frauds," provides:

"No action shall be brought * * * to charge any person upon a promise to answer for the debt, default or misdoings of another * * * unless the promise * * * be in writing and signed by the party to be charged thereby, or his agent; * * *."

This statute has been a fruitful source of litigation and has been so frequently construed by this court that it is inexpedient to attempt to consider all of the decided cases.

In the principal case of Noyes' Ex'x Humphreys, 11 Gratt. (52 Va.) 636, Judge Allen said:

"The cases upon undertakings coming within the scope of that branch of the statute of frauds prescribing the mode in which the special promise to answer for the debt, default or misdoings of another person should be made, have been numerous, and many subtle, if not shadowy, distinctions have been taken. Every collateral promise to answer for the debt, default or misdoings of another person, is within the statute, and void if not in writing; but original undertakings need not be in writing, not being within the statute. The difficulty is in determining under which head the undertaking in any partcular case is to be classed."

The rule laid down in that case was approved in Way Baydush, 133 Va. 400, 112 S.E. 611, by Judge Burks who said:

"In Noyes Humphreys, 11 Gratt. (52 Va.) 636, the prior cases in this jurisdiction are cited and it appears from them that the holding in this jurisdiction is that if the original contractor remains liable and the undertaking of the new party is merely that of surety or guarantor, the undertaking of the latter is collateral and within the statute of frauds. We do not propose to depart from that holding in this case."

In Southside Brick Works Anderson, 147 Va. 566, 571, 137 S.E. 371, Chief Justice Prentis said:

"It is perfectly well settled that no particular form of words is necessary to show an original promise or conclusion as to the intention of the parties, and that the circumstances of each case must be taken into consideration in order to determine the legal effect of such an oral promise to pay the debt of another.

"This clear expression in 25 R.C.L., section 72, page 489, is well supported: `In ascertaining to whom credit was extended, the intention of the parties must govern. This intention should be ascertained from the words used in making the promise, the situation of the parties and all of the circumstances...