McDonald v. Fernald

• Decision Date: 27 July 1894
• Citation: 38 A. 729,68 N.H. 171
• Parties: McDONALD et al. v. FERNALD.
• Court: New Hampshire Supreme Court

38 A. 729

68 N.H. 171

McDONALD et al.

v. FERNALD.

Supreme Court of New Hampshire. Coos.

July 27, 1894.

Assumpsit for labor by Lewis McDonald and others against O. W. Fernald. Question of defendant's liability reserved. Case discharged.

The facts in this and seven other actions against the defendant involving the same questions were found by a referee. In September, 1890, the defendant took a job to haul timber from certain lots in Success. He sublet a part of the job to B. R. Condon, by whom the plaintiffs were employed, at a stipulated price per month. They and others, fearing they would not be paid for their work, threatened to leave. To prevent their leaving, Condon's foreman, on Sunday, December 28, 1890, procured from the defendant a writing of that date, as follows: "This is to certify that I, O. W. Fernald, will see that all men such as are now at work for B. R. Condon (subcontractor) shall have their pay in the spring, if they remain until spring, and work for the interest of the operation. O. W. Fernald." The writing was shown to the plaintiffs in the evening of the same day, but they did not definitely accept the proposition. On the following day they went to work, with the view of accepting the proposition, and relying upon it as a guaranty that they would be paid for their labor. They continued to work until spring, and worked for the interest of the operation. The defendant knew of their work. They never released Condon from his obligation to them as their employer, and never demanded their pay of him. The question of the defendant's liability was reserved.

Twitchell & Libby, for plaintiffs.

Daley, Goss & Niles, for defendant.

CHASE, J. The memorandum signed by the defendant was sufficient to answer the requirements of the statute of frauds. Pub. St. c. 215, § 2. Reading it in the light of the circumstances attending the making of it (Brown v. Whipple, 58 N. H. 229, 233), it appears that the plaintiffs were the other parties to the agreement therein proposed, and that the sums to be paid thereunder would be ascertainable by computation. In these respects the agreement resembles the one considered in Wills v. Cutler, 61 N. H. 405. Although it was unnecessary (Britton v. Angier, 48 N. H. 420; Lang v. Henry, 54 N. H. 57, 59), the consideration for the defendant's promise was stated in the memorandum, namely, the promise of the men to remain until spring, and work for the interest of the operation. This was a sufficient consideration. Wills v. Cutler, supra; White v. Woodward, 5 Man., G. & S. 810. The defendant's promise was that he would see that the men should "have their pay in the spring"; not that...