Mather v. Perry

2 Denio 162

• Court: New York Supreme Court
• Decided: January 15, 1846
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

The defendant makes twc objections to the recovery before the justice—first, that his promise was without consideration; and second, that it was a promise to pay the debt of Hewitt, and void within the statute of frauds because it was not in writing.

So far as relates to consideration, the defendant’s undertaking can be supported upon two grounds ; first, as a case of mutual promises, where the undertaking of one party is the consideration for the undertaking of the other: and second, as the more simple case of a promise by the defendant to pay for services to' be performed at his request. It only differs from the common case of a promise to pay for services to be rendered on request, in the fact that the payment was to be made to a different man from the one who actually did the labor. That fact does not affect the question of consideration. Whether the payment should be made to one man or to another, the defendant promised nothing more than an equivalent for what he was to receive, and what he has in fact received. If the defendant’s promise had been to pay in money instead of boards, I see no reason why the plaintiff might not have recovered on the common count for work, labor and services. True the plaintiff did not perform the labor with his own hands; but he performed it by the hands of another—Hewitt—which is the same thing in legal effect. Qui fácil per alium, facit per se. For the purpose of doing this work, Hewitt was the servant or hired man of the plaintiff.

This view of the case is also a full answer to the objection on the statute of frauds. The plaintiff, by his servant, has made machine frames for the defendant on his promise to pay for them when made. The defendant did not agree to pay Hewitt’s debt to the plaintiff, nor to pay the plaintiff for gocdsto be' delivered to Hewitt; but his engagement was, to pay the plaintiff for work which he, by Hewitt, should do for the defendant. As between the parties to this suit, it was wholly unimportant whether the plaintiff had paid Hewitt before he did the work, or whether he was to pay him afterwards ; nor was it of any consequence whether Hewitt ever got his pay. That was a matter, between him and the plaintiff;, and with which the defendant had no concern.

Upon the defendánt’s interpretation of the contract he is not obliged to pay any body. He. never agreed to pay Hewitt ; and his promise to pay the plaintiff was void within the statute of frauds; and so he has got the work for nothing. The law interprets contracts in a much more just .and equitable manner. The judgment of the C. E. must be reversed, and that of the justice affirmed.

Ordered accordingly.