The plaintiff seeks, by his complaint, to recover from the defendant the sum of $100, which he claims to have expended on the faith of a written agreement, and the different subscriptions thereto made by nine subscribers including the defendant. The agreement is annexed to and forms part of the complaint, and is as follows: "Whereas, an appeal has been made from the order of the commissioners of highways of the town of Clinton, opening a certain highway upon the petition of Volkert P. Dow and others. And, whereas, the undersigned are in favor of retaining the present road, provided the same can be permanently repaired; now, therefore, this article witnesseth that in case the referees, appointed to hear and decide the appeal, shall reverse the said order of the commissioners, we do hereby promise and agree to pay G.V.B. Teller the sum by us respectively subscribed, to be expended in repairing the road in front of C.G. Van Rensselaer's lot, according to the stipulations presented to us."
The defendant's subscription was for the sum of $100.
The complaint after stating that the defendant was in favor of retaining the said road in front of the plaintiff's lot, referred to in the said agreement, alleged that it, after being subscribed
by the several subscribers thereto, "was delivered to the said. J.V.B. Teller; that said Teller, before the commencement of this action, indorsed the same as follows: `Pay to C.G. Van Rensselaer or order,' signed `J.V.B. Teller,' and afterward for value received, duly assigned, transferred and delivered said agreement in writing to this plaintiff, who is now the lawful owner and holder thereof." It then, after stating that the order referred to in the said agreement was reversed on the 9th day of November, 1858, avers "that on the faith of said agreement and the different sums subscribed thereto, this plaintiff has permanently repaired said road according to said plans and stipulations presented and expended money in repairing said road to the full amount of the different sums subscribed thereto," and that the said defendant, though often requested, has not paid said sum of $100; and thereupon he demanded judgment for the payment thereof "according to the terms of said agreement," with interest from the 1st day of August, 1860, or for such other or further relief as the court might deem fit. It is evident from the allegations of the complaint that G.V.B. Teller, named in the said agreement, is the same individual subsequently named in the complaint as J.V.B. Teller, and I shall assume that to be the fact.
The defendant, by his answer, put all the material allegations, except the signing of the agreement, in issue.
The issues were tried by a referee, who found among other things:
1st. That on the 12th day of September, 1855, there was pending a certain appeal from the order of the commissioners of highways of the town of Clinton, opening a highway and discontinuing a section of an old road along the bank of the Hudson river, and passing by the residence of the defendant through the lands of the plaintiff to the city of Albany.
2d. That on that day the parties to this action, conjointly with others, executed and delivered to Jacob V.B. Teller the subscription paper or contract above set forth.
3d. That intermediate the execution of said subscription, and the bringing of this action, the decision of the commissioners
of highways, mentioned in the said subscription, was in all things reversed; that upon the reversal of said decision, the plaintiff repaired said old road at the place and according to the plans and stipulations referred to in the said subscription paper, and to the satisfaction of the defendant.
4th. That the defendant subscribed $100, and has not paid the same or any part thereof to any person.
5th. That the expense and value of the work performed by the plaintiff in making such repairs exceeds the sum of $2,000.
6th. That before the suit was brought Jacob V.B. Teller transferred all his right and interest under said subscription paper to the plaintiff, and at the same time paid his own subscription to the plaintiff.
7th. That Teller, under and by virtue of said subscription paper, never made, or caused to be made, any repairs to said road, and never received or expended any money for that purpose.
8th. That the repairs made by the said plaintiff and contemplated by the subscription paper were beneficial to the defendant.
From the foregoing facts he found the following conclusions of law, viz.:
1st. That the subscription paper, executed by the defendant, amounted to a request to perform the work contemplated in it, and the subsequent performance of such work rendered the defendant's agreement obligatory upon him.
2d. That the plaintiff was entitled to judgment against the defendant in the sum of $100, together with interest thereon from the 6th day of September, 1860, besides costs to be adjusted, and he directed judgment accordingly.
I have stated the allegations of the complaint and the findings of fact with such particularity, for the purpose of showing that the plaintiff based his claim against the defendant, and the referee placed his decision on no other agreement or promise than that contained in the instrument or subscription paper signed by him and delivered to Jacob V.B. Teller, as above mentioned.
The only question, therefore, to be considered, is, whether the facts so found are sufficient to give a right of action to the plaintiff, and entitle him to judgment against the defendant.
Assuming for the present, as the referee finds in his conclusions of law, that the subscription paper executed by the defendant, "amounted to a request to perform the work contemplated in it," a very material and controlling inquiry is suggested, and that is, to whom was that request made? The referee does not say. There is clearly nothing in the instrument to indicate, warrant or justify the conclusion that it was made to the plaintiff, or that it was contemplated by any of the subscribers thereto, that he was to repair the road. He, it is true, conjointly with the defendant, and seven other persons, signed the paper; but there is no ground or color for the inference, from such signature thereto, or anything contained therein, that he, more than any other of the subscribers, was expected or authorized to make the repairs.
On the contrary, if a request to any party to perform the contemplated work can arise, it can only apply to Jacob V.B. Teller, the person designated in the agreement as the payee to whom the several subscribers promised and agreed to pay the sums by them respectively subscribed, "to be expended in repairing the road," etc.
The fact that Teller was so designated as such payee of those moneys, and that they were "to be expended" in such repairs, appears to me clearly not only to indicate that he, and he alone, was to incur the expense for the work, and pay for it out of those moneys, but also to exclude the idea that any authority was conferred or intended to be conferred on him to do the work or have it done on the credit of the subscribers or any of them.
If this construction of the agreement be correct, it follows that no request of the plaintiff can arise or be inferred from the agreement itself. The nature of the transaction and the surrounding circumstances strongly confirm the construction, that the plaintiff was not expected to do the work, or be intrusted with its execution. The agreement itself shows that
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The plaintiff seeks, by his complaint, to recover from the defendant the sum of $100, which he claims to have expended on the faith of a written agreement, and the different subscriptions thereto made by nine subscribers including the defendant. The agreement is annexed to and forms part of the complaint, and is as follows: "Whereas, an appeal has been made from the order of the commissioners of highways of the town of Clinton, opening a certain highway upon the petition of Volkert P. Dow and others. And, whereas, the undersigned are in favor of retaining the present road, provided the same can be permanently repaired; now, therefore, this article witnesseth that in case the referees, appointed to hear and decide the appeal, shall reverse the said order of the commissioners, we do hereby promise and agree to pay G.V.B. Teller the sum by us respectively subscribed, to be expended in repairing the road in front of C.G. Van Rensselaer's lot, according to the stipulations presented to us."
The defendant's subscription was for the sum of $100.
The complaint after stating that the defendant was in favor of retaining the said road in front of the plaintiff's lot, referred to in the said agreement, alleged that it, after being subscribed
by the several subscribers thereto, "was delivered to the said. J.V.B. Teller; that said Teller, before the commencement of this action, indorsed the same as follows: `Pay to C.G. Van Rensselaer or order,' signed `J.V.B. Teller,' and afterward for value received, duly assigned, transferred and delivered said agreement in writing to this plaintiff, who is now the lawful owner and holder thereof." It then, after stating that the order referred to in the said agreement was reversed on the 9th day of November, 1858, avers "that on the faith of said agreement and the different sums subscribed thereto, this plaintiff has permanently repaired said road according to said plans and stipulations presented and expended money in repairing said road to the full amount of the different sums subscribed thereto," and that the said defendant, though often requested, has not paid said sum of $100; and thereupon he demanded judgment for the payment thereof "according to the terms of said agreement," with interest from the 1st day of August, 1860, or for such other or further relief as the court might deem fit. It is evident from the allegations of the complaint that G.V.B. Teller, named in the said agreement, is the same individual subsequently named in the complaint as J.V.B. Teller, and I shall assume that to be the fact.
The defendant, by his answer, put all the material allegations, except the signing of the agreement, in issue.
The issues were tried by a referee, who found among other things:
1st. That on the 12th day of September, 1855, there was pending a certain appeal from the order of the commissioners of highways of the town of Clinton, opening a highway and discontinuing a section of an old road along the bank of the Hudson river, and passing by the residence of the defendant through the lands of the plaintiff to the city of Albany.
2d. That on that day the parties to this action, conjointly with others, executed and delivered to Jacob V.B. Teller the subscription paper or contract above set forth.
3d. That intermediate the execution of said subscription, and the bringing of this action, the decision of the commissioners
of highways, mentioned in the said subscription, was in all things reversed; that upon the reversal of said decision, the plaintiff repaired said old road at the place and according to the plans and stipulations referred to in the said subscription paper, and to the satisfaction of the defendant.
4th. That the defendant subscribed $100, and has not paid the same or any part thereof to any person.
5th. That the expense and value of the work performed by the plaintiff in making such repairs exceeds the sum of $2,000.
6th. That before the suit was brought Jacob V.B. Teller transferred all his right and interest under said subscription paper to the plaintiff, and at the same time paid his own subscription to the plaintiff.
7th. That Teller, under and by virtue of said subscription paper, never made, or caused to be made, any repairs to said road, and never received or expended any money for that purpose.
8th. That the repairs made by the said plaintiff and contemplated by the subscription paper were beneficial to the defendant.
From the foregoing facts he found the following conclusions of law, viz.:
1st. That the subscription paper, executed by the defendant, amounted to a request to perform the work contemplated in it, and the subsequent performance of such work rendered the defendant's agreement obligatory upon him.
2d. That the plaintiff was entitled to judgment against the defendant in the sum of $100, together with interest thereon from the 6th day of September, 1860, besides costs to be adjusted, and he directed judgment accordingly.
I have stated the allegations of the complaint and the findings of fact with such particularity, for the purpose of showing that the plaintiff based his claim against the defendant, and the referee placed his decision on no other agreement or promise than that contained in the instrument or subscription paper signed by him and delivered to Jacob V.B. Teller, as above mentioned.
The only question, therefore, to be considered, is, whether the facts so found are sufficient to give a right of action to the plaintiff, and entitle him to judgment against the defendant.
Assuming for the present, as the referee finds in his conclusions of law, that the subscription paper executed by the defendant, "amounted to a request to perform the work contemplated in it," a very material and controlling inquiry is suggested, and that is, to whom was that request made? The referee does not say. There is clearly nothing in the instrument to indicate, warrant or justify the conclusion that it was made to the plaintiff, or that it was contemplated by any of the subscribers thereto, that he was to repair the road. He, it is true, conjointly with the defendant, and seven other persons, signed the paper; but there is no ground or color for the inference, from such signature thereto, or anything contained therein, that he, more than any other of the subscribers, was expected or authorized to make the repairs.
On the contrary, if a request to any party to perform the contemplated work can arise, it can only apply to Jacob V.B. Teller, the person designated in the agreement as the payee to whom the several subscribers promised and agreed to pay the sums by them respectively subscribed, "to be expended in repairing the road," etc.
The fact that Teller was so designated as such payee of those moneys, and that they were "to be expended" in such repairs, appears to me clearly not only to indicate that he, and he alone, was to incur the expense for the work, and pay for it out of those moneys, but also to exclude the idea that any authority was conferred or intended to be conferred on him to do the work or have it done on the credit of the subscribers or any of them.
If this construction of the agreement be correct, it follows that no request of the plaintiff can arise or be inferred from the agreement itself. The nature of the transaction and the surrounding circumstances strongly confirm the construction, that the plaintiff was not expected to do the work, or be intrusted with its execution. The agreement itself shows that
the road which was to be repaired ran in front of his lot; and it also appears by the finding of the referee that it was "an old road, located along the bank of the Hudson river, and passing by the residence of the defendant, through the lands of the plaintiff, to the city of Albany." It thus appears that the road ran in front of the plaintiff's lot, and also of the residence of the defendant; and as it was the object of both of them, as well as of the other subscribers, as declared in the agreement, that it should be "permanently repaired," there was a manifest propriety, and a sufficient reason, that some person other than the plaintiff should make the required reparation. Each of these parties had a direct personal interest, not only in the permanent repair of the road, but also as to the proper performance thereof in front of his own premises; and such interest may have operated in the exclusion of themselves, and in the selection of Mr. Teller to do the work. It is unnecessary to add anything further on this branch of the case than to say, that MILLER, J., in the opinion delivered by him in the Supreme Court, after alluding to the fact that there was no particular person designated who was to perform the work, and that it may perhaps be questionable whether it was not intentionally left as it was, without naming any one, so that any one of the subscribers could do it who was willing to perform the duty, adds: "As, however, the money was payable to Teller, and was to be expended in repairing the road, I am inclined to think that it was either to be done by him, or under his direction, or with his authority or approbation. It necessarily passed through his hands; and hence, I think, it may be assumed, as a fair and sensible construction of the contract, that he was the person through whose instrumentality the agreement was to be carried out."
My conclusion in any view of the case is, that the subscription paper did not amount to a request to the plaintiff to perform the work contemplated, and that the referee erred if he intended it to be understood or inferred from his finding that it did; and it follows that the subsequent finding, based thereon, "that the subsequent performance of such work
rendered the defendant's agreement obligatory upon him," is also erroneous.
It is, however, said by Justice MILLER in the opinion already referred to, that, although by a fair and sensible construction of the contract, Teller was the person through whose instrumentality the agreement was to be carried out, yet "it was not intended that he personally should be obliged to do the work;" that "he had an undoubted right to employ others if he chose, and it was no change of the terms of the contract if he did so," and upon the assumption that he had done so, and that the contemplated repairs and work were done under and in pursuance of such employment; the judge comes to the conclusion, in which his brethren appear to have concurred, that the plaintiff, under and by virtue of the assignment executed by Teller to him directly after he had repaired the road, of all Teller's right and interest under the said subscription paper, could maintain this action. The answer to that position is, that the complaint itself, and the facts found by the referee, not only do not warrant and authorize that assumption, but are entirely repugnant to it, and inconsistent therewith. The complaint avers, "that on the faith of the said agreement, and the different sums subscribed thereto, the plaintiff has permanently repaired said road according to said plans and stipulations presented, and expended money in repairing said road to the full amount of the different sums subscribed thereto;" and there is no allegation or suggestion of the performance of the work by Teller, or by any one under his employment.
The referee also finds that "the plaintiff repaired said old road," etc. * * * "that the expense and value of the work performed by the plaintiff in making such repairs, exceeds the sum of $2,000," and "that Teller, under and by virtue of said subscription paper, never made or caused to be made any repairs to said road, and never received or expended any money for that purpose."
There is, therefore, no ground for sustaining the judgment of the court below.
The views above expressed render it unnecessary to decide or consider whether there was sufficient in the agreement and the facts found by the referee, to raise or infer a request to Teller, to perform the work contemplated or not.
The action is not founded on such request, or on a liability resulting therefrom.
The judgment of the General Term, and that entered on the report of the refereee must, for the reasons stated, be reversed, and a new trial is ordered, costs to abide the event.