Slade v. Utah Construction Co.

Mr. Justice McBride delivered the opinion of the court. 1. The statement of facts preceding this opinion goes largely into the testimony introduced by plaintiffs, because, if any evidence was introduced by plaintiffs rea [532] sonably tending to support their theory of the case, it is conclusive on this court after' verdict. But in our opinion there is an entire absence of testimony tending to show an original contract with the Utah Construction Company. In its final analysis it amounts to this: G. W. Straw had a subcontract from the Utah Construction Company for constructing a certain portion of the grade of the Northwestern Railroad. Slade & Davis were negotiating with him for mile 26, embraced in his contract, and were told by the agent of the construction company to enter into a contract with Straw, and the railroad company would pay them as station men were paid; that is, that the work on mile 26, which they were to do, would be paid for just the same as the company had been in the habit of paying on small contracts or subcontracts for 100 feet of grade, and that they would not be obliged to wait until Straw’s whole contract was finally finished and accepted before the money would be forthcoming. Slade & Davis knew at that time that Straw had the contract for this particular mile of work, and that the construction company was bound to pay Straw for it, and could not legally contract with any one else to do it without Straw’s consent. With this knowledge they entered into a contract with Straw to do the work for him at prices fixed by him and themselves, the complete details of which were never known to the Utah Construction Company. The supplies were charged to Straw, every, time check was signed by Straw', and there is not a single syllable of testimony indicating that Straw knew or suspected that Slade & Davis were working for the Utah Construction Company and not for him. Suppose Slade & Davis had refused absolutely to finish their contract and had quit without cause, leaving it half completed; would not Straw have had an action for damages against them, and could they have successfully defended by say [533] ing that the Utah Construction Company was their real employer? Certainly not. Or suppose that they had abandoned the contract without completing it, and the Utah Construction Company had attempted to bring an action against them for damages. They could lawfully have answered: “You let the contract for mile 26 to Straw and agreed in writing to pay him for it. You had no right to let it to anybody else. You told us to contract with Straw and we did so. If you are injured in any way, you must look to Straw, the man you told us to work for — the only man who had the right to say who should grade this particular mile of road. We looked to you for the pay, but you must look to Straw for the work. He is your original contractor.” It is plain that in such a case the construction company would have no standing in court. There is nothing in the evidence to indicate that it was a matter of the slightest advantage to the construction company that Slade & Davis should do the work rather than Straw or any other subcontractor. 2. A fair test of the question as to who was the real employer, the principal in the transaction, is afforded by the foregoing illustration. The Utah Construction Company would have no remedy in damages occasioned by a failure on the part of Slade & Davis to complete the grading on mile 26, while Straw would have had such remedy, and the conclusion is irresistible that the construction company was not the original contractor with Slade & Davis, and, in fact, not a contractor in any sense of the word unless an oral guaranty, void under the statute of frauds, may be termed a contract. The agreement, if any was made, was merely collateral; and that the plaintiffs so considered and treated it is shown by their attempt to create a lien on the road in the notice of which they set forth that the work was performed by them for Straw. [534] This case does not come within the reasoning of the case of Balliet v. Scott, 32 Wis. 174, cited by counsel. In that case, Scott, the defendnant, entered into a contract with Doton & Bennet, by which it was agreed that Scott was to pay the laborers employed by Doton & Bennet and deduct the amount so paid from the contract price agreed to be paid them. In pursuance of such authority from Doton & Bennet, Scott promised the laborers, before they went to work, that he would pay them, and the court held that the written agreement before mentioned was equivalent to an order by Doton & Bennet on Scott to pay them their wages as they became due, and that, when the laborers assented to this, it became a valid and binding contract. This was not an action between the laborers and Scott, but was a proceeding by an outside garnisher to attach the money which had been earned by them before process was served. It will be seen that in the above case there was held to be an agreement between Scott and the contractors and the laborers, making a complete contract. Here there is not the slightest evidence that Straw even knew of or agreed to, any arrangement between Slade & Davis and the construction company. Nor does it come within the rule announced in Mackey v. Smith, 21 Or. 598 (28 Pac. 974), where goods were delivered to one person upon the agreement of another to pay for them, no credit being actually given to the party who received the goods, although for convenience they were charged in his name, that case proceeding upon the principle that the person who received the goods was not liable to the vendor and that the person who ordered their delivery was the sole debtor. Under the facts in that case, the vendor could not have recovered from the person to whom the goods were delivered. Here Slade & Davis had and still have a complete cause of action against Straw, and, in fact, have joined him as a defendant in this action, though he has not been served [535] with summons. The case last cited and Miller v. Lynch, 17 Or. 61 (19 Pac. 845), so completely define the difference between original and collateral contracts that further citation of authorities seems superfluous. We do not think there was any testimony in this case showing an original contract on the part of the Utah Construction Company, and for that reason the judgment of the lower court is reversed, and a new trial ordered. Reversed.