Silsbury v. Blumb

Walker, J. It appears, from the evidence in this case, that Frye, Smith & Co. contracted with Charles R. Carroll for slops, to feed a quantity of cattle, at Ms distillery. Carroll, by the agreement, was not to furnish pens or stables for the cattle'. Frye, Smith & Co. contracted with defendant in error to build the pens. Carroll, however, agreed to allow Frye, Smith & Go. the cost of the pens, out of the price of the slops. Carroll furnished and paid for the lumber employed in erecting the pens, and Frye, Smith & Go. were to furnish the labor, and other materials. After the work had progressed to some extent, Carroll refused to furnish anything to make changes and alterations which were desired in the plan of the work, but authorized Frye, Smith & Co. to make the alterations, furnish the material, etc., and he would allow the cost out of the price of the slops. They made the change in the plan, and had the work completed. It is first objected, that Carroll, who was called by defendant in error, was incompetent as a witness, because he was interested in the event of the suit. If he had any interest, it was manifestly against the party calling him, and he undoubtedly had the right to call him against his own interest. It is true, that whatever judgment defendant in error might recover against the survivors of Frye, Smith & Co., Carroll would be liable, even to them, under his agreement. It was then his interest to reduce the amount of the recovery by defendant in error, as any reduction his evidence might produce would be his gain, on a settlement with the survivors of Frye, Smith & Co. We are unable to perceive, that in any event, it would be to his interest to increase the amount of the recovery. It is again urged, that the court below erred in admitting parol evidence of the agreement, when it is insisted that there was a written contract. The objection is not well taken, as the written agreement was between plaintiffs in error and Carroll, and there is nothing in the record showing that defendant in error was a party to it, or had any knowledge of its existence. He cannot be bound by it, nor can it in any manner furnish evidence of the terms or conditions of the agreement under which he furnished these materials. He was a stranger to that agreement, and by any known rule of law, he cannot be bound by its provisions. There was therefore no error in admitting the parol evidence, and in excluding the written agreement. The evidence clearly shows, that defendant in error furnished the items charged in his account, paid for them, and applied them to the use of plaintiff in error and his partners. It also appears that the firm was, by the agreement with Carroll, to furnish them, and he was to allow the firm for their value, out of the price of the swill which he was to furnish them. Having employed defendant in error to furnish these materials, the firm of. Frye, Smith & Co. were alone liable to pay him. There is nothing in this record which tends to prove that Carroll ever agreed, or was in any way liable, to pay defendant in error for these materials, or that defendant ever agreed to look to him for payment. Nor are the circumstances such as the law will imply a promise on the part of Carroll to pay for them, as his undertaking was with Frye, Smith & Co. alone, and not with defendant in error. For these reasons, we are of the opinion that the judgment of the court below must be affirmed. Judgment affirmed.