Opinion
September, 1905.
Order reversed and new trial granted, with costs to appellant to abide event.
The defendant insists that the complaint does not state facts sufficient to constitute a cause of action, but I will assume for the purpose of this opinion that the complaint sets forth a good cause of action and also that the testimony of the plaintiff and that of McEwen is true. The conversation which the plaintiff testifies that he had with the defendant in which defendant said that he would not give Ryan any more money until he, Ryan, furnished a receipted bill for all labor and materials on the job, was before plaintiff had an assignment of McEwen's claim and no similar conversation is shown to have taken place with McEwen. Plaintiff cannot recover even for the work done and materials furnished by him by reason of such conversation because it did not take place until after the work was performed and the materials were furnished and there was, therefore, no consideration for an executory promise to pay therefor. The complaint in part alleges in terms an agreement by the defendant to pay for the work and materials furnished by the plaintiff and by McEwen "if the said Andrew J. Ryan failed or neglected to do so." Such a promise cannot be enforced by reason of the Statute of Frauds. A further allegation of the complaint is the alleged promise by the defendant, a person interested in having the work done and materials furnished, that he would not pay Ryan any more money on his contract until the plaintiff and McEwen respectively were paid. Plaintiff wholly failed to sustain such allegation on the trial. A further allegation of the first cause of action of the complaint is the alleged promise by the defendant that if plaintiff would obtain an order from Ryan that he would accept and pay the same. The jury were not asked to consider the evidence of plaintiff as to defendant's promise to pay an order if he obtained one from Ryan. The evidence quoted was received after the defendant's repeated specific objections that it was not within the pleadings, and the jury were in substance directed to find whether the defendant had become the principal debtor to the plaintiff and to McEwen for the work performed and materials furnished by them respectively. The plaintiff has recovered upon causes of action not only not alleged in the complaint, but in direct opposition to the express allegation of the complaint that the defendant promised to pay Ryan's debts if he failed to do so. We think the order should be reversed and a new trial granted, with costs to the plaintiff to abide the event. All concurred, except Chester, and Houghton, JJ., dissenting.