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A. Schwoerer & Sons, Inc. v. Stone

Supreme Court of New York, Appellate Division

March 5, 1909


Appeal from Trial Term, New York County.

Action by the A. Schwoerer & Sons, Incorporated, against Samuel H. Stone. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial ordered.

Bertram L. Kraus, for appellant.

Benjamin F. Feiner, for respondent.


[115 N.Y.S. 441] MCLAUGHLIN, J.

This action was brought to recover the sum of $1,650 and interest thereon for labor performed and materials furnished on a building which was being constructed by the Wolff Construction Company-the complaint alleging that the plaintiff had a contract with it to perform work and furnish materials in and about the roof; but before any of the work was performed or any of the materials furnished, the construction company became financially embarrassed, and the plaintiff refused to proceed under its contract. Thereafter, at the request of the defendant, who was interested in the completion of the building, and upon his promise to pay the plaintiff, the work and materials in question were performed and furnished. The answer denied the material allegations of the complaint, and alleged as an affirmative defense that the promise, if made, was oral, was to answer for the debt or default of another, and void under the statute of frauds. The complaint was dismissed at the close of plaintiff's case, and it appeals.

At the trial only one witness was sworn, Schwoerer, the treasurer and active manager of the plaintiff, from whose testimony it appears: That the plaintiff entered into a contract with the Wolff Construction Company, the main contractor, to do certain work and furnish certain materials on the building. That, before the plaintiff entered upon the performance of the contract, the construction company became financially embarrassed, and plaintiff refused to perform its contract. That thereupon the defendant sent for Schwoerer, and asked him what plaintiff proposed to do about carrying out the contract, and he informed defendant that plaintiff was not going to carry it out because the construction company was financially embarrassed. That the plaintiff had a judgment against it for $600 or $700 which it had been unable to collect. That there were liens against the building, and that the Mannados Realty Company, in which the defendant was interested and of which he was treasurer, had commenced an action to foreclose a mortgage which it held. Thereupon the defendant asked Schwoerer how much the plaintiff would reduce the contract, and go on and finish it under the supervision of a Mr. Roach, whom the defendant said he had made president of the Wolff Construction Company in place of its former president; that Schwoerer replied he already had a contract with the Wolff Construction Company, and there was no need of reducing the price to make a new one with them. That defendant then suggested that the contract be made with the Mannados Realty Company, and this proposition was rejected by Schwoerer and the defendant then said, " Supposing I agree to pay you for the work, how much will you take off?" And Schwoerer replied, " If you agree to pay for the work, I will make the price $2,750" (the original price was $3,000). That defendant then took the contract and made an indorsement upon it to the effect that the price was reduced to $2,750, and then said to Schwoerer: " Now you go up and see Mr. Roach, and let Mr. Roach prepare contracts to-morrow or the next day for $2,750." That Schwoerer called upon Roach and certain revisions were made which still further reduced the price to $2,250, and a new contract was then prepared between plaintiff and the Wolff Construction Company, but no provision was made for the [115 N.Y.S. 442] terms of payment, except that " payments to be arranged within the next 48 hours, satisfactory to both parties" ; Roach saying the arrangement would have to be made with the defendant. That Schwoerer then took the contract to the defendant, who said he would pay " as soon as I wanted any money, to try to get $1,000 worth of work done" before asking for a payment. That Schwoerer then stated that the plaintiff would not do the work under the contract, and asked if defendant would not give him a letter, which he refused to do because he stated he was interested in the loan made by the Mannados Realty Company, and, if he did, then the other mechanics on the building would come and want their payments on the building guaranteed in that way, and he did not propose to pay them; but he said:

" Go ahead, and I will see that you get your money. I will pay you for everything you do on that job.*** I will tell you I will give you payments as you progress; but don't make them any less than $1,000."

That the plaintiff thereupon furnished the materials, and performed the labor called for by the contract. That, during the progress of the work, Schwoerer asked Stone for a payment on the contract of $600, and the defendant said he would send over a check for that amount, which he did. That the check was made by the Mannados Realty Company by S. H. Stone, treasurer, payable to the order of Wolff Construction Company " for Schwoerer & Sons," indorsed by the construction company and then delivered. That shortly after this the work was completed and plaintiff asked Stone for final payment. That he made some complaint about the work, and said, if that were remedied, then he would pay. That the changes were made as suggested and another request made for payment, and defendant replied, " You come in here in a week or 10 days," and I will pay you. That he thereafter refused to make any further payments, and this action was brought. The testimony of the witness Schwoerer to the effect that the defendant personally promised to pay the plaintiff was corroborated by the affidavit of Roach, which was put in evidence without objection.

Upon this state of facts I think the plaintiff made a prima facie case which entitled it to recover. It is fairly to be inferred from Schwoerer's testimony that the defendant not only was interested in the Mannados Realty Company, which was foreclosing the mortgage upon the building, but that he, in fact, constituted substantially the Wolff Construction Company. He stated that he had removed Wolff from the construction company, and put Roach, his superintendent, in his place. The promise sought to be enforced related to the indebtedness thereafter to be created. It was an original promise, founded upon a new consideration, which was work thereafter to be performed and materials thereafter to be furnished. Raabe v. Squier, 148 N.Y. 81, 42 N.E. 516; . Reisler v. Silbermintz, 99 A.D. 131, 90 N.Y.Supp. 967.It was beneficial to the promisor by reason of his interest in the Wolff Construction Company or the Mannados Realty Company, or both. Thus the case is brought within the rule laid down in White v. Rintoul, 108 N.Y. 222, 15 N.E. 318, in which the court said:

[115 N.Y.S. 443] " Where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of payment irrespective of the liability of the principal debtor."

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.


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