Howell v. Harvey, Ex'r.
| Decision Date | 16 March 1909 |
| Citation | 65 W.Va. 310 |
| Court | West Virginia Supreme Court |
| Parties | Howell v. Harvey, Ex'r. |
1. Frauds, Statute of Pleading Necessity.
The statute of frauds may be relied on as a defense under the plea of non assumpsit, (p. 312.)
2'. Same Original or Collateral Promise.
If a person make an oral promise to pay the debt of another in order to derive some benefit to himself thereby, which he did not otherwise have, such promise is an original undertaking and not within the statute of frauds; and in such case it matters not if the original promisor be not released, (p. 312 to 318.)
3. Same.
P. contracted to build a house for Harvey and sublet a part of the job to Howell who did a portion of it and quit because P. failed to pay him. Harvey told Howell to go on and finish the work and he would pay him. Howell completed the job and Harvey refused to pay him. In an action on the oral promise: Held, that the promise is an original one and, therefore, not within the statute of frauds. (p. 318.)
4. Decision Disapproved.
The case of Noyes' Ex'r. v. Humphreys, 11 Grat. 636, considered and disapproved, (p. 319.)
Error to Circuit Court, Cabell County.
Assumpsit by A. C. Howell against H. C. Harvey, executor. Judgment for plaintiff, and defendant brings error.
A firmed.
Brown, Jackson & Knight, T. W. Peyton, and Thos. H. Harvey, for plaintiff in error.
George I. Neal and Holt & Duncan, for defendant in error.
W. W. Peyton contracted with H. C. Harvey in May, 1899, to build a house for him on the corner of 3rd Avenue, and 10th Street, in the City of Huntington, West Virginia,
Peyton sublet a part of the work to A. C. Howell who proceeded with his part of the work until June 22, 1899, when his men quit work, because Peyton had not paid him. Peyton failed. Harvey was away from home when the men ceased work. Howell says that on Harvey's return to Huntington he asked Howell why the work was not going on, and he replied, that Peyton had not paid him, and he could not pay his men, and they had quit. He further says that Harvey told him "For Cod sake go on with this work; finish this post office building, if you don't do it, it will ruin us." Three others testified to substantially the same conversation, and that Harvey told Howell he would, pay him; one of them, that he said "he would pay him every cent," Harvey denied making any such statement.
At this time Peyton owed Howell on the sub-contract something over $600.00. On the 24th day of June, 1899, the day of this alleged conversation, Harvey paid Howell $600.00, but says he did so on a written order from Peyton, which order was identified and filed as evidence. Howell completed the work about the 10th of August, 1899; and, Harvey refusing to pay him, he sued him in assumpsit in the circuit court of Cabell county upon his oral promise, on the 22nd day of January, 1902.
One W. M. Mertens, who had furnished material to Peyton to be used in the construction of the house, filed his bill in the circuit court of Cabell county on the 26th day of December, 1899, to enforce his mechanic's, or materialman's lien, and made Harvey, Peyton, Howell and others defendants to the bill. Howell answered, and averred his contract with Peyton; filed a statement of his account against Peyton showing a balance due him of $788.12; sought to enforce his mechanic's lien against Harvey's property, and prayed for a personal decree against Peyton. The itemized account, verified by Howell's affidavit, was exhibited with his bill. He also served notice of his lien upon Harvey. This suit was referred to a commissioner who reported that Harvey was not indebted to Peyton, but that, after allowing Harvey the "liquidated and unliquidated damages" to which he was entitled against him, Peyton was indebted to Harvey in the sum of $18.71.
Howell was surety on Peyton's bond to Harvey for the faithful performance of his contract.
The circuit court held Howell's claim to be invalid as a lien. But some other mechanic's liens were decreed to be good. From the final decree in the case H. C. Harvey and another appealed, and on review of the cause by this Court, the decree of the lower court was reversed, and the plaintiff's bill dismissed for want of equity, but without prejudice to the rights of the parties claiming to hold mechanic's liens to sue Peyton at law. See case in 53 W. Va. 192.
The present action was brought in January, 1903, but the trial was delayed pending the determination of the appeal in the Mertens suit which was decided by this Court in April, 1903. Trial of this action was had, and on the 5th day of July, 1905, judgment was rendered in favor of plaintiff for $847.37 with interest and cost, upon defendant's demurrer to the evidence. It is now before us upon writ of error awarded to defendant.
Defendant relies upon the statute of frauds, although he has not pleaded it specially. In some jurisdictions it must be specially pleaded; but in this State and in Virginia it is not necessary, when the defendant has by plea, or answer, denied the contract declared on. This is an action of assumpsit and the defendant has pleaded to the general issue. The plea of non assumpsit is broader in its scope than most other pleas, and under it defendant may invoke the statute of frauds. Hogg's IT. & Forms, sec. 220; Bowton v. Bowton, 1 H. & M. 92; Fleming v. Holt, 12 W. Va 143; Barrett v. McAllister, 33 W. Va 738, and same case in 35 W. Va. 103.
The case having been decided upon a demurrer to evidence, the testimony of plaintiff and his other witnesses in regard to the oral contract made between him and defendant after the work had been partly performed, must be taken as true. This, then, proves the contract declared on in the special count.
The question then arises: Is the force of this evidence destroyed by the fact that after the work had been fully uerformed, plaintiff sought to enforce his claim as a mechanic's lien in the Mertens chancery suit? We think not. We do not think his unsuccessful efforts, in that suit, are inconsistent with his present action. It was a circumstance to be considered by the jury in determining whether or not plaintiff had actually released this defendant from his oral promise. But if there was a consideration to support the promise, there certainly was none supporting a release from it. If this defendant was bound on his oral promise to plaintiff, it was upon a new consideration moving from plaintiff to him, and such promise need not, necessarily, have released the original contractor, Peyton, from his obligation to him. If the defendant was bound, then they were both bound to plaintiff, until he is paid.
In the case of McLaughlin v. Austin, 104 Mich. 489, which is a case almost identical with this one, the supreme court of Michigan, said:
See also the following additional authorities: Mallory v. Gillett, 21 N". Y. 412; Leonard v. Vrendenburgh, 8 Johns. 28; White v. Rintoul, 108 K Y. 222; Nelson v. Boynton, 3 Met. 396.
This fact was a matter of evidence for the jury on the question of plaintiff's intention to release defendant, and they must have resolved that question in favor of plaintiff.
Counsel for plaintiff in error also insist that the fact that plaintiff was surety on Peyton's bond to defendant is a matter entitled to great weight to show that plaintiff was not induced to complete the work because of defendant's promise, but that he did it to relieve himself from a liability greater than his loss of pay for services. This, also, was only an evidential fact to be considered by the jury on the question of intention. And, if this liability still existed at the time of this action, defendant had a right to recoup damages against this plaintiff resulting from his insolvent principal's failure to carry out his contract. But this he did not do.
The jury has found by its verdict that defendant made the promise declared on, and. that plaintiff, by his subsequent unsuccessful effort to enforce his claim as a lien, did not release defendant from his promise; and, this finding being supported by the evidence, we think the court did right in refusing to set aside the verdict, unless as a matter of law the defendant is not bound by his oral promise to plaintiff. This question depends upon whether, or not, the promise was to answer for the debt of another, and is, therefore, not actionable.
The statute of frauds is one noted for its brevity and the terseness of its language, yet it has claimed the attention of the courts of last resort, both in this country and in England, more often perhaps than any other law. It is practically the same in all the states. It was enacted to relieve persons and their estates against false and fictitious claims, by requiring the highest order of proof to establish liability in cases where it is sought to recover against a person as the mere voluntary surety or guarantor of another. But it has been perhaps as frequently invoked to avoid liability as it has been relied upon to protect against injustice. The courts have said that it shall not be perverted and made the instrument of accomplishing a wrong, and have, therefore, in the vast majority of cases construed it to have no application in those cases where there is a consideration supporting the oral promise to answer for the debt or obligation of another, other than the release of the original obligor, or the extinguishment of the old debt,...
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