Egan v. Thomson — 57 How. Pr. 324

Majority

p. 324

N. Y. COMMON PLEAS.

John Egan, plaintiff and appellant, agt. James F. Thomson, defendant and respondent.

Headnote

Vohmta/ry offer to contribute to a pa/rticula/r person for a pa/rticula/r purpose— What is a good consideration — cam, it be enforced by any one other than the person named in it?

Defendant addressed a letter to H., offering to contribute the expense of cost of boxes for B.’s election, with a promise to pay check on presentation at defendant’s office:

Held, that said letter authorized H. to employ any carpenter to make the boxes; and the plaintiff having been so employed, and having done the work relying upon the letter, had a right to look to defendant for payment.

General Term, November, 1878.

p. 325

Appeal "from judgment entered upon an order of Mr. justice Robinson, dismissing the plaintiff’s complaint, at trial term, upon the ground: First. That the defendant’s offer was made to William Haw, Jr., and that no one else could enforce it; and, second, that the offer was void for the want of consideration.

The following is a copy of the agreement sued on:

“ New Yoek, Motfr. 3d, 1877.

Wm. Haw, Jb., Esq.:

My Deab Sir. — I will contribute the expense of boxes for Benj. Beyea, candidate for assembly, twenty-first district, not to exceed three dollars per district; on presentation of bill at my office, check will be paid.

Yours, very truly.

JAMES F. THOMSON.”

Sail <& Blandy, for the appellant.

I. The agreement was not void for the want of consideration (Barnes agt. Perrine, 12 N. Y., 23 ; Willets agt. Sun Mutual Insurance Co., 45 N. Y., 45 ; 6 Am. Rep., 31 ; Adams agt. Hanness, 62 Barb., 326 ; Hammon agt. Shepard, 40 How. Pr., 452 ; 29 id., 188; Cope agt. Atkinson, 8 Exch., 185, 187, note).

II. Haw had authority to transfer the agreement, and, having transferred it to the plaintiff, and he having made the boxes, relying upon the agreement, has a right to recover (Van Rensselaer agt. Aiken, 44 N. Y, 126 ; see, also, Eastern Plank Road Co. agt. Vaughn, 20 Barb., 155 ; Muller agt. Mitchell, 70 N. Y., 437 ; lawroson agt. Mason, 3 Cranch, 492 ).

III. The contract was transferable, and plaintiff,, on showing compliance with its terms, can recover, though not named in it (Hays agt. Willis, 4 Daly, 261 and cases there cited; Wait's Actions and Defenses, vol. 1, pp. 355, 356, 357 and cases there cited).

p. 326

It could be assigned orally, and Haw would then be divested of all right to sue defendant (Marcus agt. St. Louis Mut. Life Ins. Co., 68 N. Y., 625 ; Sheridan agt. Mayor, &c., 68 N. Y., 30 ).

Alexander Thain, of counsel {James S. Graces attorney), for respondent.

I. {a.) The agreement is not addressed to the plaintiff, does not constitute a contract and is not evidence of any contract between plaintiff and defendant.

(5.) It is not a direction to plaintiff to make boxes; it is a mere offer to contribute to the treasury of an association.

{c.) There is no definite promise by defendant or acceptance by plaintiff.

{d.) Defendant was a stranger to the plaintiff and to the paper and there is no privity (Simson agt. Brown, 68 N. Y., 355 .)

II. The paper lacks the elements of a contract (1 Chitty on Contracts [11th ed.], 11). There was no consideration for any promise as in Farley agt. Cleveland ( 4 Cow., 432 ) and Simson agt. Brown ( 68 N. Y., 355 ).

III. Haw could not even maintain an action upon this agreement, because:

{a.) There was no consideration for the offer.

(5.) There is no evidence that Haw assented to, or accepted, the offer or acted upon it.

(c.) Ho recovery can be had on the agreement (Stewart agt. Trustees of Hamilton College, 2 Denio, 403 ; S. C, 1 N. Y., 581 and cases cited).

TV. But even if Haw could recover the plaintiff cannot, because:

{a.) There is ño assignment to the plaintiff.

(5.) The paper does not constitute Haw defendant’s agent (Raney agt. Weed, 6 Sand., 577).

(<5.) There is no evidence that Haw directed or authorized the plaintiff to make the boxes.

Thomson’s letter to Haw shows clearly that Thomson expected Haw to procure the boxes and to induce some carpenter to build them by promising that the boxes would be paid for when the bill for them was presented at Thomson’s office.

If Haw was not to order the boxes, why did Thomsom refer to the presentation of a bill for them at his office ?

If Thomson intended merely to send to Haw a contribution towards the expense of Beyea’s canvass, there would have been no propriety in his saying any thing concerning the bill.

A request from Thomson to Haw to contract for the boxes and a promise by Thomson to pay not more than three dollars per district for the boxes furnished, appearing on the face of the letter, or being naturally implied by its terms, I think Haw had power to employ a carpenter to build the boxes, and that any carpenter, hired by Haw, who built the boxes, relying upon the promise contained in the letter, had the right to look to Thomson for his pay. It appears that the letter was handed by Haw to Egan, who then went on and finished the boxes.

Ho question is made respecting the delivery. I think the plaintiff, upon the evidence, made out a case, which, within the decisions hereinafter cited, entitled him to a verdict (Trustees of Hamilton College agt. Stewart, 1 N. Y., 581 ; Barnes agt. Perrine, 12 N. Y., 18 ; Van Rensselaer agt. Aiken, 44 N. Y., 126 ).

The judgment should be reversed, a new trial ordered, with costs to abide event.

Daly, O. J., concurred.

Judgment reversed.