McTighe v. Herman , 42 Ark. 285 ( 1883 )

EaKIN, J.

Wallace sued Herman before a justice of the peace for $35, the price of a tent. Herman had .been engaged in boarding operatives upon the line of the railroad between Little Rock and Pine Bluff. He brought in a set-off against plaintiff for the board of hands, amounting, after giving credit for the tent, to something over a hundred dollars. After a recovery by the plaintiff before the justice, Herman appealed to the Circuit Court, and there recovered judgment, on his set-off, against plaintiff for a balance of §103.09, found by verdict of a jury. After motion for a new trial, and exceptions saved by bill,, plaintiff appealed to this court. Hying, pending the appeal, the suit is revived in name of his administrator.

The litigation is concerning the plaintiff'Vliability for the board of the hands claimed in the set-off. There is no contest concerning the tent, nor the amount of the board bill. The question arises under the statute of frauds. The circumstances are that "Wallace being a contractor on-the road, sublet to one Stapp, the construction of certain. “ bents,” which seem to be spans of trestle work. Stapp had hands working under his directions and control, which were employed by him, although their wages were sometimes paid by Wallace, and charged to Stapp out of his pay under the contract. Stapp had kept a cook for the hands but the cook became sick, aud he engaged board for them with defendant Herman. The proof tends to-show that Herman was unwilling to trust Stapp for payment, and that Stapp, to induce him to do so, told liim that Wallace would be responsible for the payment. It tends further to show that Wallace, afterwards, upon being solicited by Herman to pay the board, verbally promised to do so, at least as to some of the hands; the proof as to the promise to pay for all being conflicting. There is no direct proof that Wallace knew, when the contract for board was made by Stapp, that he had assumed to act as Wallace’s agent, and to direct the credit to be given to Wallace, nor that he had been informed of that when he afterwards made the verbal promises to pay the bill, or that he had ever authorized Stapp to direct the-credit to be given to bim, or that it was bis duty to procure boarding for Stapp’s bands. All these matters were such as a jury might, or might not, infer from other facts and circumstances in evidence.

1. Evidence Of witness in another suit: When admissible 1. Statute of Frauds: Promise to pay dept of another.

We therefore pass without further comment the usual grounds of a motion for a new trial, often inserted pro forma, or from superabundant caution, that the verdict was contrary to or unsupported by evidence, ma(je a ground of the motion that the court im-n ProPerly admitted testimony on the part of defendant, This apu¿es to a certain deposition of one John Kerrigan, which had been taken in another suit between Herman and Wallace concerning this same board bill. It seems that Herman had first sued before another justice, and Wallace had not interposed the set-off of the tent. That was allowed by Herman in his account. Wallace, in place of accepting the credit or setting up the cross matter regarding the tent, brought this suit for it, and Herman interposed as a set-off' the same account sued on elsewhere. The first suit seems to have been abandoned, but that is of no consequence, as no point was made on its pendency. The deposition was taken in a suit between the same parties, regarding the same issues; and, as Kerrigan had left the State, was admissible. Greenl. on Ev., vol. 1, sec. 164; 45 Mo. Rep., p. 267; 69 Ib., p. 365.

The instructions are not all contained in the bill of exceptions, whether from oversight or design we do not know. It seems there was a third instruction asked by plaintiff', and refused, which is not copied. So far as we can judge of the instructions, as shown, they were correct and consistent. They set forth the statute of frauds correctly as applied to promises to pay the debt of another, and in the absence of a written agreement, or memorandum, advise the jury that the liability of plaintiff to pay the board bill depended upon whether the credit was originally given to him, either by his authority at the time, or without his authority, if he were afterwards informed that it had been so given and ratified it, but would not be liable upon a verbal promise to pay a debt of Stapp for the board of hands. The motion for a new trial was properly overruled.

Affirm.