Fitzgerald v. Morrissey

• Decision Date: 20 March 1883
• Citation: 15 N.W. 233,14 Neb. 198
• Parties: JOHN FITZGERALD, PLAINTIFF IN ERROR, v. JOHN MORRISSEY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

15 N.W. 233

14 Neb. 198

JOHN FITZGERALD, PLAINTIFF IN ERROR, v. JOHN MORRISSEY, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 20, 1883

ERROR to the district court for Johnson county. Tried below before WEAVER, J.

AFFIRMED.

T Appelget & Son, for plaintiff in error, cited: Osborn v Farmers Bank, 16 Wis. 36. Bressler v. Pindell, 12 Mich. 225. Brown v. Hazen, 11 Mich. 219. Walker v. Richards, 39 N.H. 259. Jackson v Raynor, 12 Johns. 291. Simpson v. Patten, 4 John., 422. Watson v. Randall, 20 Wend. 201. Stern v. Dinker, 2 E. D. Smith, 401.

Pinero & Chapman, for defendant in error, cited: Rose v. O'Linn, 10 Neb. 367. Clopper v. Poland, 12 Neb. 70. Dearborn v. Parks, 5 Greenleaf, 81. Serge v. Williams, 1 Saund., 211, note 2. Williams v. Leper, 3 Burr, 1886. Colt v. Root, 17 Mass. 236.

OPINION

MAXWELL, J.

Morrissey brought an action against Fitzgerald in the district court of Johnson county, and for cause of action alleged in his petition in substance that on or about the first day of August, 1881, Fitzgerald was engaged in grading the roadbed of a railroad in Johnson county, and requiring the services of a large number of hands to aid him in performing said labor, promised Morrissey and others that if they would not abandon said work, which they were about to do, but would enter into the employment of said Fitzgerald and labor for him in grading said roadbed, that he would pay Morrissey and others for certain work previously performed by them on said roadbed for one Garland, as soon as said work was measured; that relying upon said promise, Morrissey and others did not abandon said work as intended, but remained and continued to work on said roadbed as requested by Fitzgerald; that the work done by Garland has long since been measured, but the amount due to Morrissey thereon has not been paid. The prayer is for $ 45.71 and interest. The answer in effect denies the facts stated in the petition. On the trial of the cause, a verdict was returned in favor of Morrissey, upon which judgment was rendered.

The errors assigned are: First. That the court erred in giving paragraph one of the instructions. Second. That the court erred in refusing to give the instructions asked on behalf of Fitzgerald, from one to five inclusive.

The instruction given which is complained of is as follows: "1st. If you shall find from the evidence that Fitzgerald agreed with John Morrissey that if he, Morrissey, would work for him he would pay certain indebtedness coming from one Garland to Morrissey, and if you further find that in consideration of said promise the plaintiff went to work for the defendant and performed his part of the contract, then you will find for the plaintiff for such amount as the evidence shows he ought to recover."

It is admitted that Fitzgerald has paid Morrissey in full for all labor performed for him, and this action is for the sole purpose of recovering for labor performed by Morrissey for one Garland, on said roadbed. It appears that Garland was a sub-contractor under Fitzgerald, and that he left the work indebted to his employes for labor performed. There is some testimony tending to show that Morrissey, because of his promise set up in his petition, failed to file a laborer's lien on the roadbed of the railroad and thereby lost the benefit of the same; but there is no allegation of this kind in the...