McCready v. Freedly

• Citation: 3 Rawle 251
• Parties: M'CREADY and another v. FREEDLY.
• Decision Date: 23 January 1832
• Court: Pennsylvania Supreme Court

3 Rawle 251

M'CREADY and another v. FREEDLY.

Supreme Court of Pennsylvania.

January 23, 1832

IN ERROR.

A covenant in a deed of partition between A. and B. that they shall at their equal and joint expense, cause the canal or race through their respective lots from the dam & c. to be widened and improved in the manner therein specified, and the race and head gates at all times forever to be kept in order at their equal and joint expense, does not render them jointly liable for work done to the canal & c. by order of A. alone, and it is error in the court to charge the jury, that the covenant in the deed of partition, and the fact of the work having been done, were some evidence of a joint agreement on the part of A. and B. with the plaintiff to do the work.

Nor are the declarations or admissions of A. without any authority being shown from B., to make a contract binding them both jointly, any evidence whatever of a joint contract.

Nor are the circumstances of B. having been frequently at the place when the work was done, and having his agents there, while it was going on, and saying nothing to the plaintiff to induce him to believe, that he was to look to A alone for payment, any evidence of B.'s liability.

WRIT of error to the Court of Common Pleas of Montgomery county, in an action of assumpsit for work and labour done, and materials furnished, in which the defendant in error, Jacob Freedly, was plaintiff, and the plaintiffs in error, Bernard M'Cready and Samuel R. Wood, defendants. The defendants below pleaded nonassumpserunt, set-off and payment, upon which issues were taken.

Kittera, for the plaintiffs in error.

Rawle, junr. for the defendant in error.

OPINION

KENNEDY J.

On the trial of this cause, it appeared in evidence, that M'Cready and Wood had been the owners of, and held as tenants in common, a lot of land at Norristown in Montgomery county, through which a canal or race had been made to conduct the water from the Schuylkill river, and was used by them for manufacturing purposes. On the 30th of January, 1826, a partition by deed of that date was made and executed between them, and among other things in it, the following clause is contained: " They, the said Samuel R. Wood and Bernard M'Cready agree, that they, their heirs and assigns, at their equal and joint expense, shall cause the canal or race through their respective lots from the dam to De Kalb street, to be widened so as to take in one half of the river Schuylkill, when the water is at its lowest stage, and to be walled from the bottom to the height of six inches above the level of the water in the dam; which race and the head gates shall at all times forever be kept in order at the equal and joint expense of Samuel R. Wood and Bernard M'Cready, " & c.

This suit was brought to recover the price of work and labour done, and materials furnished for the accomplishment of the same, by Freedly, at this race mentioned in the covenant between Wood and M'Cready, in the deed of partition just recited. It was proved, that the work and materials were done and furnished by Freedly, and that he was employed by Wood for that purpose. Likewise that two persons, after the work was done, were appointed by Freedly and Wood, to measure it, who after doing so, and making out a bill of it, showed it to Wood, who asked for a copy of it to give to M'Cready, who, as he ( Wood ) said, was equally interested with him. There was also some evidence given, that M'Cready was frequently at the place and passing it, while the work was in progress, but he also had persons at work there or close by at the same time. There was no evidence given, which went in the slightest degree to show, that M'Cready had any knowledge or reason to suspect, that Freedly intended to look to him for payment, until after the work was done some time, and Wood had become unable to pay.

There was evidence given on the part of M'Cready, that he had employed and paid hands for walling and doing the work mentioned in the deed of partition on that part of the race opposite to his mill and allotment in the partition that was made, the amount of which was sixteen or seventeen hundred dollars. It was attempted on the part of the plaintiff below to rebut the effect of this last evidence by showing that he had done work for M'Cready in building or assisting to build a factory for him, and that in a suit brought by Freedly against M'Cready for this last work mentioned, he (M'Cready ) claimed as a set-off this sixteen or seventeen hundred dollars, which he had paid for work done at his part of the race, because that Freedly by a contract in writing made with M'Cready and Wood jointly, in 1825, had undertaken to do all that same work in a particular manner, and had been paid for doing it, but failed to finish the work in the manner he had undertaken and agreed to do.

The court below in their charge to the jury, told them, that the covenant or agreement between Wood and M'Cready contained in their deed of partition and which has been recited, taken in connexion with the fact of the work being done by Freedly, was some evidence of an...