Aughie v. Landis

Hammond, J. The appellee filed his complaint in the court below against Catherine Aughie and the appellant, charging, in substance, that in October, 1876, he entered into a contract with the defendants to make certain street inprovements in the city of Logan sport, in front of, and along, certain lots owned -by said Catherine, for which the defendants were to pay the plaintiff a stipulated compensation ; that the defendant Catherine agreed with the plaintiff that such work should be a charge upon her said lots; that the plaintiff performed the work according to the contract, “but that the defendants have refused, and still refuse, to pay the same, although often requested so to do.” The appellee dismissed as to Catherine., A demurrer to the complaint, for want of facts, was filed by the appellant and overruled by the court, to which ruling the appellant excepted. Issues were joined and tried by a jury, and a verdict returned for the appellee. Judgment was rendered on the verdict over the appellant’s motion for a new trial. A number of errors are assigned, but the only one discussed in the appellant’s brief relates to the sufficiency of the complaint. We think the complaint was good. While the averments are not made directly, the facts stated show that the appellee’s claim was due and unpaid. As the contract did not specify when the appellee was to do the work, the law required its performance in a reasonable time. The complaint avers that the work was done according to the contract. This is equivalent to alleging that it was done in a reasonable time after the making of the contract. As the contract made no provision when the work was to be paid for, the law required its payment as soon as completed. The averment in the complaint that the work had been finished shows that the contract price for the work was due. That it is unpaid is shown in the allegation that “ the defendants have refused and still refuse to pay the same, although often requested so to do.” In an action upon a contract, if the general averments [421] of the complaint show that the plaintiff’s claim is due and unpaid, it is sufficient without making such averment directly. Filed May 15, 1884. The allegation in the complaint that the work was to be a charge on Catherine’s lots may be regarded as surplusage. The appellant’s contract was not within the statute of frauds. By employing the appellee to do the work, he did not thereby agree to pay Catherine’s debt, but was contracting a debt of his own. If, as we may infer from the complaint, the improvements were required to be made by the city council, and were chargeable to Catherine’s property, still the appellant would be liable, if the appellee did the work under a contract with him alone, or jointly with him and Catherine. One who employs another upon his own credit to perform work for a third person is liable for its payment. The appellee’s complaint stated a good cause of action. The demurrer to it was rightly overruled. Judgment affirmed, at appellant’s costs.