Nagle v. McMurray

Hayne, C.

This was an action to recover $547. 75 for work done upon a street, upon an alleged parol contract with the defendant. The answer denied the contract, and the court found this issue for the defendant, and rendered judgment in his favor. It is contended that this finding is not justified by the evidence. But there is the direct testimony of the defendant in its support, and this was to some extent corroborated by the witness McGreal; and, in addition, these two witnesses swore that defendant filed in the street superintendent’s office a protest against the issuance to the plaintiff’s assignor of a permit to do the work (which seems to be undisputed), and also informed the plaintiff’s assignor that defendant would not be responsible for the work. The foregoing is sufficient to raise a substantial conflict in the evidence.

The appellant also relies upon a promise after the work was completed. But assuming that such a promise would not be without consideration, the finding is against its existence; and there is evidence in support of the finding. The fact that the defendant saw the work upon the street going on without further protest does not render him liable or raise an implied promise to pay. Nor can a promise be implied from the fact that on several occasions he made suggestions to the workmen. The street was a public street, and his explanation (“I noticed that his stakes were not right, and as I like to see things done right, I called their attention to their mistake”) is not improbable.

The permit from the street superintendent to do the work is something that is required in cases of private work upon the streets, and imposed no liability upon the defendant.

In view of the foregoing, the other matters are immaterial.

We therefore advise that the judgment and order appealed from be affirmed.

Foote, C., and Belcher, C. C., concurred.

The Court.—For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Hearing in Bank denied.