Janvrin v. Powers

• Decision Date: 29 June 1918
• Citation: 104 A. 252
• Parties: JANVRIN v. POWERS et al.
• Court: New Hampshire Supreme Court

104 A. 252

JANVRIN

v. POWERS et al.

Supreme Court of New Hampshire. Rockingham.

June 29, 1918.

Transferred from Superior Court, Rockingham County; Sawyer, Judge.

Action by John A. Janvrin against Thomas Powers and Robinson Bros. Case transferred from superior court on defendant Powers' exceptions. Exceptions overruled.

Action on the common counts, with an account for lumber and supplies annexed. Robinson Bros. defaulted, and the case was submitted to the jury only against Powers. There was an attachment in the suit to secure a lien for the plaintiff on the property of Powers. Robinson Bros. took a contract to build a bungalow for Powers, and the materials specified in the account annexed to the writ were furnished by the plaintiff and used in its construction. The plaintiff did not give to Powers a written notice that he should claim a lien. The trial was by jury, and the issues submitted to them were whether the plaintiff had a lien upon the property of the defendant, and when it attached. The jury found that the plaintiff did have such a lien, and when it attached, although no question is now raised about the latter finding. The defendant's motions for a nonsuit at the close of the plaintiff's evidence, and for a directed verdict at the conclusion of the evidence, were denied, subject to exception. The exceptions to evidence, to the argument of counsel, and to the charge of the court, taken by the defendant, sufficiently appear from the opinion.

Eastman, Scammon & Gardner, of Exeter, for plaintiff. Sleeper & Brown, of Exeter, and Ernest L. Guptill, of Portsmouth, for defendant.

PLUMMER, J. The defendant's motion for a nonsuit was based upon the following grounds: That, if any promise was shown on the part of the defendant, it was simply a collateral promise to pay the debt of another, and further that no notice in writing was given him, as required by statute. No grounds are set forth upon which the defendant relied in his motion for a directed verdict, but it is assumed they were the same as for the nonsuit. The plaintiff is seeking in this case to establish a lien upon the defendant's property. The defendant's position, as disclosed by these motions, is that, as the promise upon which the plaintiff relied was not in writing, he cannot maintain his action (P. S. c. 215, § 2), and also upon the statute (P. S. c. 141, §§ 13, 15) which requires a subcontractor to furnish to the owner a notice in writing of his intention to claim a lien and a statement of his account once in 30 days. The evidence of the plaintiff tended to prove that he knew nothing about the financial condition of Robinson Bros.; that before he furnished any materials to them to build the defendant's house he saw the defendant about furnishing such materials, and that the defendant told the plaintiff to go ahead and furnish the materials for them to build the house, and let him know from time to time, and he would see that the plaintiff was paid; that the plaintiff would not have furnished the materials if the defendant had not promised that he would see him paid; that as the work progressed the defendant telephoned to find out if a payment had been made by the Robinsons; that later the plaintiff's wife telephoned to the defendant about the work, and he asked if the Robinsons had made a payment, and she said, "No," and gave to the defendant the amount then due for materials, whereupon the defendant said he guessed he was in bad, and he could not understand why people did not do as they agreed, his word was as good as a gold bond, etc.; that before the completion of the job the plaintiff wrote defendant a letter, giving him the amount of his bill, and that the Robinsons had ordered a little more material, probably amounting to $50 or more, and that he was notifying him of the amount of the bill to protect both himself and the defendant; that, referring to this letter in his testimony, the defendant said, "I knew I had to pay for the lumber that Robinson Bros. was putting in there for me, and I expected to, and supposed they had paid them till I got that letter;" that during the progress of the work the defendant ordered materials of the plaintiff; that before the completion of the house one Robinson, who had been in charge of the work, abandoned it, and the other Robinson came to take charge; that he told the defendant he had gone as far as he could, that he had nothing to do with, and that the defendant said, "You go right ahead, and, if the plaintiff don't draw the lumber, we will get somebody that will."

From the evidence tending to prove the above statements, it could be found that the plaintiff furnished the materials upon the credit of the defendant, and that the defendant's promise was an original and not a collateral undertaking, and therefore not within the statute of frauds. In Lakeman v. Mountstephen, L. R. 7 H. L. 17, the facts were not unlike those in this case. There the defendant, who was the surveyor for a certain board of health for whom the plaintiff had been doing sewage work, on some question being raised about the continuance of the work, said: "You go on and do the work, and I will see you paid." It was held that there was evidence upon which the jury might find that the credit was given to the defendant, so as to make his promise original, and not collateral. The following cases, similar to the case at bar, hold that the promise was an original undertaking and not within the statute: Clifford v. Luhring, 69 Ill. 401; Jefferson County v. Slagle, 66 Pa. 202; Merriman v. McManus, 102 Pa. 102; Weyand v. Crichfield, 3 Grant, Cas. (Pa.) 113. "The question to whom the credit was given is always for the jury to determine, upon all the circumstances." Browne, St. Fr. 254; Walker v. Richards, 41 N. H. 388: Connolly v. Waycott, 63 N. H. 618; Moshier v. Kitchell, 87 Ill. 18; Pettit v. Braden, 55 Ind. 201; West v. O'Hara, 55 Wis. 645, 13 N. W. 894; Larson v. Jensen, 53 Mich. 427, 19 N. W. 130.

[21 There was evidence on the part of the plaintiff that the defendant had obtained from Robinson Bros, a contract for the construction of his house that was very advantageous to him. Accordingly any promise he made to the plaintiff that would...