Barden v. Briscoe

• Decision Date: 17 April 1877
• Citation: 36 Mich. 254
• Court: Michigan Supreme Court
• Parties: Alanson H. Barden and another v. Joseph A. Briscoe and others

36 Mich. 254

Alanson H. Barden and another v. Joseph A. Briscoe and others

Supreme Court of Michigan

April 17, 1877

Submitted on Briefs April 5, 1877

Error to Superior Court of Detroit.

Judgment affirmed, with costs.

Jackson & Wisner, for plaintiffs in error.

E. Y Swift and T. Romeyn, for defendants in error.

OPINION

Campbell, J.:

Plaintiffs seek to recover against defendants for articles and board furnished to certain laborers and others under an employment or undertaking from one Aldrich, who had taken a subcontract from defendants to finish a six mile section of the Detroit and Bay City Railroad, which defendants were building as general contractors.

The liability, so far as the allegations of error refer to it, is alleged to have arisen out of the fact that defendants paid the laborers during a portion of the time involved, and in paying them retained from each payment the amount of claims of such creditors as are represented by the plaintiffs, and continued to keep the moneys thus retained.

Under the testimony upon the trial, the court, under charges not complained of, and which were, so far as we can see, as favorable as the testimony warranted, left it to the jury to determine on whose credit the articles were furnished, and, upon the question of Aldrich's agency, held that defendants would be chargeable if by their conduct they had done any thing which was reasonably calculated to lead to a belief that Aldrich was their agent.

The jury found generally for the defendants, and found specially that Aldrich never was an agent, and further, that the agreements were made with him personally and not as agent, and the debts sued for were incurred and the articles furnished solely on his credit and engagement, and not on account of defendants.

Under these findings, there can be no question that even if defendants had promised to pay the accounts, their promise was within the statute of frauds, as a promise to pay the debt of another.

The plaintiffs, recognizing this difficulty, insist that the defendants are liable for money had and received to their use, by reason of the detention of the money.

As none of this money was paid to them for any purpose, and as it was merely a failure to pay so much money to Aldrich or on his account, it would be necessary at least to show that there had been a settlement with him under which these amounts now claimed had been allowed as so much money, and that they had agreed to pay them as their own obligations accordingly. Whether this would have brought them into a direct liability to plaintiffs or not, need not now be considered, as no such case was made out, and no charge was sought on that distinct basis. But as it is claimed a charge was asked implying this it is sufficient to say there was no legal evidence on which to base it. All the evidence there was on the subject tended to show that Aldrich had been overpaid; and it is alleged as error that this evidence...