Kahn v. Lucchesi

• Decision Date: 11 June 1898
• Citation: 46 S.W. 729,65 Ark. 371
• Parties: KAHN v. LUCCHESI
• Court: Arkansas Supreme Court

46 S.W. 729

65 Ark. 371

KAHN v. LUCCHESI

Supreme Court of Arkansas

June 11, 1898

Appeal from Pulaski Circuit Court JOSEPH W. MARTIN, Judge.

Judgment affirmed.

Morris M. Cohn, for appellant.

Where one is sought to be held liable for the trot or negligence of another, by virtue of a guaranty against such tort or negligence, this promise or guaranty must be in writing and signed by the party to be charged. Sand. & H. Dig., § 3469, second clause; Browne, Stat. of Frauds, § 155 and cases, 2 Day, (Conn.), 457; 63 N.C. 198; 33 Kans. 580; 12 Ark. 194; 21 A. 601; 45 Ill.App. 155; 49 Ill.App. 509; 41 N.E. 164; 50 Ind. 130; 60 Conn. 71; ib. 468; 31 N.E. 539. Hence testimony of a verbal agreement of this character was inadmissible. Appellant was entitled to an instruction on this phase of the case. 52 Ark. 45-47.

(2. This testimony was improper, for the further reason that the theory of join negligence and joint liability for negligence which formed the basis of the complaint, is inconsistent with the theory of a guaranty. 88 Mich. 103; 26 P. 735, 738.

Whipple & Whipple and James Coates, for appellee.

Original undertakings are not within the statute of frauds. 12 Ark 174. Nor are cases where the promise to pay the debt of another is found on a new consideration (81 Va. 777), or where the leading object was the benefit of the promisor. 45 O. St. 239. The statute applies to promises made to the person to whom another is answerable. 11 Ad. & Ex. 446; 1 Addison, Cont. 310. The debt or liability guaranteed must be exclusively that of another, to fall within the statute. 22 L. J. (N. S.) Exch. 97; 1 Addison, Cont. 309. He who directs an act to which a tort is incidental is liable for the tort. Wharton, Neg. § 186; ib. 185, 178; 16 Wall. 566; 51 Am Dec. 205, note; 95 Wis. 573; 4 Ohio N. P. 229; 70 Ill.App. 93; 135 Mo. 558; 53 Ark. 503.

OPINION

BUNN, C. J.

This is a suit by Caesar Lucchesi against Herman Kahn, W. D. Holtzman, and the estate of Dennis McGann, for damages in so excavating for and erecting a division wall, and the temporary structures necessary for the work, as to cause the same to fall and injure plaintiff's goods. Damages laid at $ 2,000. In the progress of the trial the cause was dismissed as against Ellen McGann, administratrix of the estate of Dennis McGann, and progressed alone as against Herman Kahn and W. D. Holtzman. Verdict for one hundred and fifty dollars for plaintiff, and Kahn alone appealed to this court.

The complaint in this case is for an injury to plaintiff's property occasioned by the negligence of the defendants,--a tort pure and simple--while in the progress of the trial evidence was adduced tending to show that Kahn was responsible for the damages to the plaintiff by his special contract with the plaintiff to the effect that he would guaranty him against all damage done by him by the erection of the division wall, with the aid of the temporary support suggested and caused to be erected by him.

The evidence in support of the tort was conflicting, that is there was evidence going to show that Holtzman did this work as an independent contractor, which, if found to be true, it is contended by defendants, would relieve Kahn of a joint liability. On the other hand, there is evidence from which it might well have been inferred by the jury that, not only was this particular work not included in the general contract to erect the building, but that Holtzman, in performing it, was acting under the immediate and special direction of Kahn. In other words, the inference may...