Weldin Lane v. Porter

9 Del. 236

• Court: Superior Court of Delaware
• Decided: July 5, 1871
• Status: Published

Opinion

By the Court.

We do not think the action can be sustained on the proof before us, not, however, on the grounds assigned for the nonsuit asked for by the counsel for the defendant. The agreement in question is very informally drawn and expressed, but the purport and meaning of it, we think, is quite obvious and apparent upon the face of it. Forrest, who had contracted with the defendant to build for him the houses referred to, was indebted to the late firm of Wise & Weldin in the sum of $376.43, which at the instance and request of the defendant, was assigned by that firm to the plaintiffs who had recently succeeded them in business, and who had agreed with the defendant to furnish the lumber for the houses which Forrest had contracted to build for him at that time, in consideration of which the defendant agrees and promises to pay them, as the assignees of Wise & Weldin, the $376.43 due from Forrest to them, in part payment for the lumber so to be furnished by them for the building of the ten houses stated in the agreement, and further, to make over to them by deed one of those houses (when they should be finished we suppose it means) also in part payment for the same, at the stipulated price or valuation of $1500, the two payments thus to be made for them amounting in the aggregate to $1876.43, which was the price agreed upon by both parties to be paid by the defendant to the plaintiffs for the lumber to be furnished by them for all the houses. The words of the.agreement in this respect are as follows. “For the said row of ten houses Weldin & Lane are to furnish the lumber and take in part payment for bill of lumber the house I have above agreed to deed over to them,” the other part payment for it to be the $376.43 which in it he had already assumed and agreed to pay to them for Forrest, as before stated; and although the agreement is alone signed by the defendant, yet the words which we have just quoted and read from it, import in the legal interpretation and meaning of it under the proof in this case, as direct and express a stipulation on the part of the plaintiffs to furnish the lumber for the purpose stated, and on the terms stated, as if it had been signed by them also; and being such a stipulation on their part, it constituted on the face of the instrument and in the words of the agreement itself, a good and complete consideration for the promise of the defendant to pay them that amount of money on account of Forrest’s indebtedness to them under the asignment from Wise & Weldin, and further, to convey to them by deed one of the houses at the stipulated price of $1500.

It is, therefore, not only one entire contract, but a special contract which has never been entirely performed even by the plaintiffs according to the evidence, and much less so, by the defendant; and yet, if we understand the tenor and effect of the several counts contained in the declaration, the whole and sole object of the action seems to be the separate recovery of the $376.43 assumed by the defendant, and which he promised in the agreement to pay to the plaintiffs on account of the balance of indebtedness due from Forrest to Wise & Weldin, and assigned by them at the request of the defendant to the plaintiffs. The special contract, however, cannot be sued on in this case, because it has not been performed on either side, nor can the specific demand sued for be recovered on any of the counts contained in the declaration. But we will direct the jury to return a verdict for the defendant, so that the plaintiffs may have an opportunity to except to our opinion, if they are not satisfied with it.