The opinion of the Court was delivered by Kennedy, J. The plaintiff in error, who was the defendant in the court below, was a contractor for making a section on the Erie extension of the Pennsylvania Canal, at or near Hartstown, in Crawford county, and in March 1839 sub-let the making of it to a Niel O’Donnell, who employed hands for the purpose of doing the work, among whom was the defendant in error, to whom, on settlement, there was a balance of §47 or §48 coming from O’Donnell.
The defendant in error brought this action against the plaintiff in error for the purpose of recovering this balance, alleging that the plaintiff in error had by his undertaking and conduct rendered himself liable to pay it.
On the trial of the cause evidence was given by the plaintiff below tending to prove that while he and others were engaged in working on the section under the employment of O’Donnell, O’Donnell seemed not to be attending to the matter very closely, and was not paying the hands, or at least some of them, as they wished: that the defendant below was spoken to by some of them on the subject, but not by the plaintiff; that upon being spoken to, he said he would draw the estimate, that is, the money for the work done, as it progressed, from the State, and it should not go out of his hands until every debt against the section was paid; that he would apply the estimate towards payment of the debts against the section, and that O’Donnell should not handle a dollar of it until the hands were paid; that this was told to the plaintiff below among others; that the 489 defendant below said he would take the work into his own hands; that this, however, he did not do until after the plaintiff had quit work and his claim had accrued, when the superintendent of the work on the part of the State, interfered, and required the defendant below to do so, otherwise he would declare the section aban doned, and relet it.
Evidence was also given going to show that the defendant below had expressly agreed to pay some of the hands for their work done on the section under O’Donnell, if they would get orders from O’Donnell directing him to do so; but nothing of the kind was shown in favour of the plaintiff below, or that the defendant below would pay him in any way whatever, unless it were that he would draw the estimates made on O’Donnell’s work and would not pay over to him anything until the hands who worked for him on the section were first paid out of the estimates.
Evidence was also given, on the part of the defendant below, showing that he had paid out all the moneys received by him on the estimates in discharge of debts owing by O’Donnell for work done, or claims against him on account of the section, which does not appear to have been repudiated or contradicted.
Yet under this state of the evidence the court below instructed the jury, “ that if the defendant below found that O’Donnell was unable to continue the work in June, and he took the work*into his own hands, and carried it on himself, as is testified to by Newton, he would be bound to pay the hands, who continued to work on the job, although they were hired by Neil O’Donnell, who at that time superintended the work; and in that event O’Donnell would be considered as the defendant’s agent, and he would be bound to pay the hands, although he did not personally make any agreement with them to do so.
Or if after O’Donnell failed in June, the defendant’s acts and declarations were such as to induce ordinary men to believe that the work was carried on by himself, and at his expense, and the plaintiff from those acts and declarations did believe so, and continued to work in consequence thereof, the defendant would be bound to pay him.” Now it appears to us that the court below, in submitting the case to the jury, have given a colouring to it in favour of the plaintiff, which is not warranted or supported by the evidence.
We can perceive no evidence tending to prove that the defendant below, in the month of June, took the work of the section into his own hands, and carried it on himself, nor does Newton testify, as the court say to the jury, that he did, nor to anything from which such a deduction could be fairly made by the jury.
Neither does evidence appear to have been given of any acts and declarations done and made by the defendant below, which could or ought to have induced any man to believe that the work of making the section was carrying on by himself and at his expense, and in such a manner as to render him liable to the plaintiff below for his work done under his contract made with O’Donnell, whatever the 490 plaintiff below may have thought of the acts and declarations of the defendant.
The whole of the evidence given by the plaintiff below, was extremely loose and unsatisfactory at best, and such as by no means justified the court in submitting the liability of the defendant to the plaintiff on the grounds that they did. It was leaving it to the jury to place the liability of the defendant to pay for the work done, upon facts which the evidence in no wise tended to prove or establish; which was clearly error. The judgment is therefore reversed, and a venire de novo awarded.
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