Grant v. Wolf

• Decision Date: 15 July 1885
• Citation: 34 Minn. 32
• Parties: WILLIAM GRANT and another <I>vs.</I> JOHN S. WOLF and others.
• Court: Minnesota Supreme Court

34 Minn. 32

WILLIAM GRANT and anothervs.

JOHN S. WOLF and others.

Supreme Court of Minnesota.

July 15, 1885.

Plaintiffs brought this action in the district court for St. Louis county, to recover $1,850, on the cause of action stated in the opinion. At the trial before Stearns, J., and a jury, plaintiffs had a verdict

for $1,737.96. Defendants having moved for a new trial, the court ordered that a new trial be had unless the plaintiffs should remit from the verdict all in excess of $1,505.80, but that, on plaintiffs making such remission, no new trial should be had. The plaintiffs made the remission, and the defendants appeal from the order.

Ensign & Cash, for appellants.

White & Reynolds, for respondents.

BERRY, J.

Upon the plaintiffs' theory of the character of their alleged cause of action, and of the tendency and effect of the evidence by which it is sought to be sustained, (and we think their theory is the right one,) this case presents but very little difficulty. The defendants had entered into a contract with the Duluth & Iron Range Railroad Company for the construction of a portion of its railroad, and had sublet a certain "section" of that portion to the firm of Somerville & Cameron, as subcontractors. It appeared from the defendants' own testimony that they were bound by their contract with the railroad company to see that the laborers on the work were paid, and the company saved harmless from the liability imposed upon it by Gen. St. 1878, c. 34, §§ 89, 90. Somerville & Cameron had asked the plaintiffs to open a boarding-house near their "section," where the laborers employed by them could get board. There is no evidence that plaintiffs concluded any agreement with Somerville & Cameron to board their hands for them; but, without any such agreement, and without any bargain with the laborers themselves, so far as appears, the plaintiffs called upon the principal contractors — the defendants — to inquire whether they would be responsible for the board of the laborers; and, upon being assured that they would be, or that they would, in the language of the testimony, "see them [the plaintiffs] paid" for such board, plaintiffs proceeded to furnish the board to recover the price of which this action is brought.

Now, upon this theory, it is clear that the responsibility assumed by the defendants was original, and not collateral to the agreement of another, and therefore not within the statute of frauds. Upon this theory, the words "see them paid" are not an agreement on the part of the defendants to see that some one else...