Dempsey v. Billinghurst

• Decision Date: 28 October 1895
• Citation: Dempsey v. Billinghurst, 64 N.W. 1124, 7 S.D. 564 (S.D. 1895)
• Parties: DEMPSEY v. BILLINGHURST.
• Court: South Dakota Supreme Court

7 S.D. 564

64 N.W. 1124

DEMPSEY

v.BILLINGHURST.

Supreme Court of South Dakota.

Oct. 28, 1895.

Syllabus by the Court.

B., who had, upon the 1st day of April, employed M. to perform personal service at an agreed price of $30 per month and board, thereupon entered into an agreement with, and by which he became liable to, and did pay, S., the proprietor of an hotel, for boarding M. On the 1st day of the following September, D. bought the business of S., and, without notifying B. of the change, furnished board to M. for more than two months thereafter. In the absence of anything to show that B. knew that D. was boarding M., or that he would be called upon to pay therefor, it is held, in an action by D. against B. to recover the reasonable value of M.'s board, that no implied agreement or privity of contract existed between the parties to the suit, and that the original agreement between B. and S. was not made for the benefit of D.

Appeal from circuit court, Spink county; A. W. Campbell, Judge.

Action by S. E. Dempsey against W. S. Billinghurst. Plaintiff had judgment, and defendant appeals. Reversed.D. W. Poindexter, for appellant. Sterling & Morris, for respondent.

FULLER, J.

For a cause of action against the defendant, the complaint in this case states that plaintiff, a keeper of an hotel, furnished board and lodging to one Martin, an employé of the defendant, for a period of nine weeks, at the special instance and request of the latter, and that the said board and lodging are reasonably worth the sum of $36, no part of which has been paid. Defendant, by his answer, alleged a nonjoinder of parties defendant, and denied that he ever requested plaintiff to provide the board and lodging mentioned in the complaint, or that he ever promised to pay for the same; and further alleges that on the 1st day of April, 1892, he and two other parties, named in the answer, employed Martin for three months to care for and handle certain stallions which they owned jointly, at an agreed price of $30 per month and board, and that Martin has received the same in full from the defendants. The case was tried to the court on the pleadings without amendment and without a jury, and resulted in a judgment for the plaintiff, from which, and from an order overruling a motion for a new trial, defendant appeals. Our view of the case as to its subject-matter renders it unnecessary to consider the alleged defect in parties defendant.

The facts shown by the undisputed evidence and as found by the court are, in substance, as follows: The defendant, W. S. Billinghurst, C. B. Billinghurst, and George H. Small, jointly owned the horses which Martin contracted to handle at $30 per month and board. On the 1st day of April the defendant told one Swain, an hotel proprietor, to board Martin, and to come to him when he wanted any money. Under this arrangement with Swain the board was furnished, and paid for by the defendant, until the 1st day of the following September, when plaintiff became the proprietor of the hotel, and continued to board Martin for nine successive weeks, without notifying defendant of the change. The judgment of the trial court is based upon the conclusion that an implied agreement existed between the parties to the suit whereby appellant became liable to pay respondent a reasonable compensation for boarding and lodging said Martin after Swain ceased to be the proprietor of the hotel. The arrangement between Swain and appellant, consummated fully five months before respondent began to board Martin, and, so far as it appears from the record, more than seven months before appellant knew that Martin was boarding with respondent, or that he would be called upon to pay therefor, is not sufficient to establish an implied liability...