Andre v. Bodman

Tuck, J., delivered the opinion of this court. The first exception was taken by the plaintiff, to the exchi — 251 — Sion of the testimony of Justus H. Weber, who was examined in his behalf, subject to exceptions on the part of the defend - ant, and who was objected to as incompetent, on the ground of interest, after all the testimony in the cause had been received. The appellant contends, that it was then too late to object. As a general rule, a party should except to testimony as soon as he is made aware of the witness’ incompetency, and where the counsel, at the trial, has in his possession the proof of his interest, he ought not to allow the case to proceed without disclosing the objection. Baugher vs. Duphorn, 9 Gill, 325. In this case the defendant’s counsel had the contracts between himself and Weber, under which the interest was supposed to arise; but he could not know that the claim of the plaintiff was for the same work which the witness had by the contracts agreed to perform, until the parol evidence made it appear. Hallet, et al., vs. O’Brien, 3 Ala., 455. Moreover, the examination commenced under a reservation of the right to object, which relieved the defendant from the operation of the rule in its strictness; and, although it might not in all cases warrant the party objecting in reserving his point until after all the proof is taken, we think that, in the present case, it was not made too late. Coates & Glenn vs. Sangston, 5 Md. Rep., 121. In determining the question presented, we must not overlook the state of the trial at the time the objection was made. Other evidence than Weber’s had been received, from which it clearly appeared to the court, that lie had failed before finishing the defendant’s house, and that he had abandoned or given up the contract; and that this plaintiff, and others, continued to work on the house at the instance and request of the defendant, who promised to pay them, and who also said, he would pay the balance of ail the bills out, if Weber would bring them in, which, however, he never did. Upon this state of proof, in connection with Weber’s, and the documentary evidence, the court was called upon to decide, whether the witness had a disqualifying interest. Trasher vs. Everhart, 3 G. & J., 242. Bank vs. Kincaid, 5 Md. Rep., 404. If we look alone to Weber’s testimony, it is by no means — 252 — clear that he was incompetent. He states expressly, that, although he had the contract with Bodman, and employed Andre to do the painting and furnish the materials, yet, before doing so, the defendant had told him, and he had informed the plaintiff, that the defendant would pay for the work; that it was the understanding that Bodman should pay the hands, (some of whom, he designates as having been paid by him;) and that he had never received any thing on account of the painting, or for the purpose of paying the plaintiff. This arrangement may have been made for the accommodation of Andre, in procuring workmen on the credit of Bodman, as well as for the latter’s security in discharging so much of the sum which he had agreed to pay for the work; it was but a means of carrying the contract into effect. 5 Md. Rep., 131, Coates & Glenn vs. Sangston. 6 G. & J., 490, Reed vs. Chambers. The testimony on this question, as we have said, was for the court, and, considering that of Weber alone without reference to the rest, we think it might well have been doubted whether the plaintiff ever credited him at all. If he did not he could have no cause of action against the witness; and if it was even doubtful, whether he did or not, his evidence ought not to have been excluded, whatever the jury might have thought of its value; for, “where the interest is of a doubtful nature, the objection goes to the credit of (he witness and not to his competency.” 6 Md. Rep., 541. 1 Greenleaf's Ev., sec. 390. 3 G. & J., 355. But suppose he was interested, was it not on either side? If a verdict against the defendant would protect Weber from a suit at the instance of Andre, for the same cause the record would be admissible in an action by Bodman against him for breach of the contract, to show the amount recovered by Andre, as part of the damages resulting from the breach, and Bodman might also recover the costs adjudged against him in favor of Andre. 1 Greenleaf’s Ev., secs. 393, 394, 395. Buckingham vs. Clary, 4 Gill, 223. And if the present plaintiff should fail in this action, the declarations of Weber, of having employed Andre to do the work, and of the value of his work — 253 — and materials, might be offered, 'as his admissions, in a suit by Andre against him. Again, if the contract with Bodman was rescinded, as stated by Good and Stein, although he might not be answerable for what the plaintiff had earned up to that time, under the supposed agreement with Weber, can it be doubted, that he would be liable for the work and materials subsequently done and supplied at his instance; for it does not appear that he ever paid even that portion of the plaintiff’s claim ? If Andre looked, in the first place, to Weber for payment, and, after doing part of the work, passed from his service to that of Bod-man, on an agreement with the latter, he could have no claim against Weber beyond the work actually done at that time,*; and, as to the subsequent work, its value might as well be proved by him as any other witness. What possible interest could he have in that inquiry ? In this view, therefore, he was competent to prove, at least, part of the claim, even conceding, which we do not, that he was incompetent to prove the abandonment of the contract, and the defendant’s promise to pay for the prior work. The objection to his evidence should have been overruled. Upon all the evidence remaining, after that of Weber had been excluded, the plaintiff offered two prayers, which were rejected. If the first of these had been confined to a recovery for the work done by the plaintiff, at the request of Bodman, on the failure of Weber to complete his contract, as given in evidence, there could have been no objection to it. There is-no testimony to show, that the defendant even paid for the work and materials done and furnished at his own request, and we suppose, as the witnesses speak of the work of the plaintiff having amounted to about one hundred and eighty dollars, they meant ail his work and materials both before and after his employment by Bodman, and that this prayer was designed to embrace this whole amount. It impliedly concedes, that the defendant would not be liable for any work and materials, in respect to which the plaintiff’ had, in the first place, agreed with Weber, as contractor for the building, because the alleged undertaking not being in writing it could not — 254 — be enforced,- but, to avoid the effect of the statute of frauds, the prayer requires the jury to find that the defendant after-wards undertook to pay the plaintiff, in such manner that he looked to the defendant, alone, for his pay, and gave up his claim against Weber. We have no doubt that a party may become liable without reducing it to writing, where the person to whom the promise is made gives up a demand against his original debtor. The very consideration of the second promise, and the necessary operation of that agreement, is to discharge the first liability at the moment of creating the new one, so that the creditor cannot be said to have two persons charged for the same debt, and if there is only one person liable, there can be nothing to which his promise can be said to be collateral. It must become an original undertaking between the parties to it, the first debt being discharged. “Where, distinct from the original liability, there is a new and superadded consideration for the promise, moving between the party promising and him to whom the promise is made, in such case it is an original undertaking, as in Williams vs. Leper, 3 Burr., 1886, where the defendant, having got possession of goods, which were subject to distress for rent in arrear, promised the landlord (the plaintiff) to pay him the rent, if he would desist from distraining.” Elder vs. Warfield, 7 H. & J., 396. The principle on which the distinction rests is concisely stated by Mr. Justice Buller, in Tatlock vs. Harris, 3 D. & E., 180. If A, B and O agree that A shall pay C a sum that B owes him, the debt of the latter is extinguished, and an original debt created between A and C. See also, Wilson vs. Coupland, 5 Barn. & Ald., 228. Cuxon vs. Chadley, 3 Barn. & Cress., 591. Wharton vs. Walker, 4 Barn, & Cress., 163. Warren vs. Batchelder, 15 New Hamp., 129. Corbett vs. Cochran, 3 Hill, (S. C.,) 41. McKeenan vs. Thissel, 33 Maine, 368. Comyn on Cont., 59. The cases show that there must be an extinguishment of the first debt as a consideration for the new promise. For the purpose of the exception now under consideration, Weber’s evidence having been excluded, must be disregarded, and, without intimating that it would lead to a different conclusion — that being for the jury — we do not find — 255 — sufficient foundation for the prayer. If there was an original promise or agreement on the part of Weber to pay the plaintiff, and the latter agreed, afterwards, to go on with the work for the defendant, it does not follow, that Weber was thereby released from what he owed the plaintiff on the work previously done. There is evidence that, the plaintiff did subsequently look to the defendant, but nothing" to show that his discharge of Weber was any part of the consideration for Bodman’s promise to pay if he would go on with the work. When the building was suspended under the contract between the defendant, and Weber, the plaintiff was discharged from his agreement with Weber, and was at liberty to continue the work for Rodman. This case is similar in principle to that of the Northern Central Railway Co. vs. Prentiss, 11 Md. Rep., 119, where it was held, that the company was liable for medical services rendered a person who had been injured on the road, it rendered at the request and on the credit of the company, although the physician had been attending the person at the instance of another party; the liability of the company being restricted to the services rendered after the request made by it. Much that we have said applies also to the plaintiff’s second prayer. If the appellant was restrained from filing his-claim for a lien, by a promise of the defendant to pay him, by which his lien against the property was lost, the defendant would be answerable on his promise; but the record does not show this. 3 Burr., 1886. It may be, that the plaintiff stopped his proceedings under the expectation of being paid by the defendant; but there is not sufficient evidence on the subject to warrant the assertion in the prayer, that upon the notice given, the defendant promised to pay the plaintiff, and retained the money from Weber; and that plaintiff neglected to file his lien, in reliance on that promise. See Keefer vs. Mattingly, 1 Gill, 182. For these reasons the plaintiff’s prayers were properly rejected. As we understand the defendant’s prayer, it, is obnoxious to two objections; First, It does not discriminate between the work done under the original agreement, alleged to have been made by Andre with Weber, and that supplied after he had — 256 — given uphis contract with the defendant. It denied a verdict for the plaintiff for any amount, although the jury might have been satisfied that the defendant owed him for the work done at his express request, after Weber’s failure, unless they should find a promise to pay, predicated on the hypothesis of the prayer, which overlooked all the evidence in reference to the abandonment of the contract, and the defendant’s undertaking at that time. It is true, that if they had found the plaintiff’s work, from the beginning, had been done on the promise of Bodman to pay him, as stated by Weber, and that he had given credit, in the first, instance, to Bodman, the plaintiff would, under the instruction, have been entitled to a verdict, as upon an original undertaking by Bodman to pay for that of which he was to have the benefit; but the only testimony on that point was Weber’s, and the court in granting the prayer, on a given state of facts, after having rejected the only witness who proved the facts, in effect denied the plaintiff’s right to recover any part of the claim, when there was evidence which, if believed by the jury, entitled him to recover apart. 1 Gill, 151. The word u unless,” confined the plaintiff’s right to a verdict to the hypothesis of the prayer, without reference to the other testimony in the cause. Cole vs. Hebb, 7 G. & J., 24, 42. Again, the prayer required the jury to find, ás a condition of a verdict for the plaintiff, that he was aware, at the time of doing the work, that Weber was building the house under the contracts between him and Bodman, when it did not appear that Andre ever saw, or had knowledge of the terms of the contracts, until produced by the defendant at this trial. With these views of the defendant’s prayer, it becomes unnecessary to say any thing of the plaintiff’s third, offered in explanation of what was said to be indefinite and obscure in that of the defendant. As to the time and circumstances of signing tire exceptions, though the question is unimportant, inasmuch as the judgment will be reversed, we can express no opinion other than that given in Roloson vs. Carson, 8 Md. Rep., 226. It is a mat — 257 — ter under the control of the inferior court, whose ruling cannot be revised on appeal. (Decided March 22nd, 1859.) Judgment reversed and procedendo ordered*