Hamann v. Leahy — 140 A.D. 153

Majority

p. 153

Charles Hamann, Respondent, v. Patrick E. Leahy, Defendant, Impleaded with Joseph A. Boyce, Appellant.

Second Department,

October 7, 1910.

Headnote

Contract — repair of automobile on credit of lessee — when lessor not liable — Statute of Frauds — oral promise to answer for debt of another.

Where the purchaser of an automobile brought it to the seller for repairs, and the hitter refused to make the same without an order from a person to whom the owner had rented it and did no work until authorized by the lessee, he cannot recover against the owner.

The owner, by stating, after the completion of the work, to the person who repaired the machine that he would see that he got his money, did not make a primary promise to pay, but vouched for the debt of another.

Appeal by the defendant, Joseph A. Boyce, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff and against the said defendant, rendered on the 15th day of March, 1910.

Clarence Sage Woodman, for the appellant.

Frank F. Davis, for the respondent.

Hamann, plaintiff, sold Boyce, defendant, an automobile in March, and during the following June repaired it, and has recovered §300 -therefor. The car was brought to plaintiff for such repairs by a chauffeur in the employment of the city of Hew York. Plaintiff refused to make repairs without an order from the city, and thereupon received on official paper the following:

“Mr. Charles IIamank,

“Ho. 274 Hall Street,

“ Brooklyn, H. Y.:

«“Dear Sir.—You are hereby requested to overhaul the Banie Car, used by this Bureau, and place same in good condition.

“ Yours truly,

“(Signed) P. E. LEAHY,

“ Superintendent of Highways, Borough of Queens.”

Leahy, as superintendent of highways, had hired the car of Boyce, and so undertook the repairs. Why is payment demanded of Boyce? The plaintiff testifies that after the completion of the work Boyce said “he would see I got my money.” This was not a promise to pay primarily, but vouching for the debt of another. But pláintiff further relies upon defendant’s promise made at the time the car was purchased. The evidence is “ I told Mr. Boyce when I sold this car, I told him, ‘ this car needs an overhauling.’ I said, ‘ if you don’t sell the car, * * * that I would like the job of overhauling the car.’ Mr. Boyce said, ‘ never mind; you will get the job of overhauling the car whether I sell it or keep it, and I will see you get your money.’ ” Hothing more relevant occurred between the parties save as above given. Boyce at the time hoped to sell the car to the city, and so stated to plaintiff. I do not consider whether the plaintiff could rely on this promise, inasmuch as he did not. He testified that when the car came for repairs, “ I asked for an order and they gave me an order,.” “ I didn’t work on the car until I received the letter.” Credit was given to the letter and whomsoever Leahy represented. If he wrote without authority he is himself liable. It does not appear that Boyce participated in Leahy’s action. The plaintiff testified that he asked Boyce for money, and that he promised to send a check,

p. 155

and did so, but it appears that plaintiff had in his possession another car owned by Boyce, and refused to- deliver it without payment, and the payment related to that car.

I advise that the judgment of the Municipal Court be reversed and a new trial ordered, costs to abide the event..

Woodward, Jenks, Rich and Carr, JJ.; concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.