McCluskey v. Cromwell — 11 N.Y. 593

Majority

p. 585

McCluskey against Cromwell and another.

Headnote

The statute (Laws of 1850, oh. 278) requiring a contractor with the state to execute, with sufficient sureties, a bond conditioned that he will pay all laborers employed by him on the work specified in his contract, does not provide for securing the payment of laborers employed in constructing the work by a person to whom it is sub-let by the contractor.

The bond executed pursuant to this statute is security only that the contractor with the state will pay the laborers to whom he shall be indebted.

Where he sub-lets the work, and the sub-contractor hires laborers to perform it and omits to pay them, they cannot sustain an action on the bond for their wages. Nor can they do so, although the contractor, by the terms of his contract with the state, was bound to perform the work by workmen under his immediate superintendence and not by a sub-contractor, and although the sub-contracting was without the consent of the state or its officers, and the work done by the laborers for the sub-contractor was estimated by the state officers and paid for to the contractor as though done by him.

The rules which should prevail in the construction of statutes, discussed. .Per Allen and Rugóles, Js.

The action was commenced in the supreme court, on the 27th of April, 1852. The complaint alleged that in August, 1851, the defendant Cromwell contracted with the canal commissioners of the state of New-York, to construct locks Nos. 108 and 109 on the Black River Canal, and that thereupon he and Utley, the other defendant, pursuant to chapter 278 of the laws of 1850, executed a bond to the people of the state of New-York in the penalty of three thousand dollars, and conditioned that if the said Andrew E. Cromwell, his heirs, executors and administrators, should and did well and truly pay or cause to he paid in full, the wages stipulated and agreed to be paid to each and every laborer employed by him or his agents in the construction of the work, specified in a certain contract for the construction of locks No. 108 and 109, Black River Canal, made between the canal commissioners .of the state of New-York, of the first part, and the said Andrew E. Cromwell, bearing date the 18th day of August, 1851, as often as once in each month, during the progress of said work or construction, pursuant to the provisions of an act of the legislature of the state of New-York, passed April

p. 586

10th, 1850, entitled “ An act to secure the payment of wages to laborers employed on the canals and other public works of this state,” then the said obligation to be void, otherwise to remain in full force and virtue ; which bond was delivered to the canal commissioner having charge of the letting of the contract, and by him filed in the office of the clerk of Lewis county, that being the county in which the locks were to be constructed. The complaint further averred that the plaintiff and a number of other persons, who were named, were, during the months of February and March, and up to April 16, 1852, employed as laborers in the construction of said locks by the defendant Cromwell or his agents, or by those acting under him in the construction thereof, and that their respective work and labor at the wages stipulated therefor amounted to sums which were specified, being in the aggregate $562.78 ; that each of the other persons named as laborers had assigned and transferred his demand to the plaintiff, and that Cromwell neglected and refused to pay the amount. The defendant Utley made no answer to the complaint. Cromwell answered and denied each allegation of the complaint; he also, by way of a further answer alleged that he sub-let to one Shippey the construction of the walls of the locks, and that the plaintiff and his assignors were employed by and performed the labor mentioned in the complaint for Shippey. The plaintiff by reply denied the new matter contained in the answer.

The cause was tried before a referee^ who found the following facts, viz: That on the 18th of August, 1851, Cromwell entered into a contract with the canal commissioners of the state of New-York, by which he covenanted to construct said lpcks 108 and 109, for certain prices ' therein specified. This contract contained the following provision: “ and the said Cromwell further agrees to perform the several stipulations of this contract by himself, and workmen under his immediate superintendence, and not by a sub.-contract or sub-contractor, except for the delivery of materials.” Simultaneously with the making of the contract, Cromwell as principal, and Utley as his surety, executed the bond mentioned in the cgmplaint, .conditioned as.

p. 587

is therein alleged. That on the 2d of September, 1851, Cromwell entered into a written contract with one Shippey, by which the latter agreed to do the masonry on the walls of the locks, and Cromwell agreed to furnish the foundations completed for the walls, to do all necessary bailing, and to pay Shippey a specified price per yard monthly, as the work progressed, less ten per cent which Cromwell was to retain till the work was done, as security for Shippey’s performance. No consent was given by the state or any of its officers'to this contract between Cromwell and Shippey; nor did the state or its officers, recognize or deal with any one but Cromwell in the construction of the locks, or in paying for the work done thereon. That the plaintiff in this suit, and the several persons named in the complaint, whose demands the plaintiff holds by assignments, were employed by Shippey, in the work done upon said locks under his contract; that they were so employed during the months of February, March, and to the 16th of April, 1852, on which day Shippey absconded, and Cromwell thereafter carried on the work of constructing the locks under his immediate direction; that the wages due to'the plaintiff and the other persons named in the complaint, and whose demands were duly assigned to the plaintiff, over and above all payments, amounted at the above named day to the sum of $562.78 ; and that , the plaintiff and his assignors had no knowledge of the existence of the contract between Cromwell and Shippey. That the work done upon said locks, including the part performed by the labor of the plaintiff and his assignors, was all estimated by the engineers employed on said canal, to Cromwell; and all the moneys paid "by the state for the work upon said locks were paid to and received directly by Cromwell, as the contractor therefor.

Upon the facts so found, the referee decided:

(1.) That the spirit and intent of the act of April, 1850, and of the bond required to be given under it, were to provide for the payment of the laborers upon the public works, whether directly employed by the contractor, by an immediate and personal employment, or mediately and by the intervention of a

p. 588

subcontractor; and that the facts proved in this case bring the plaintiff and his assignors within the protection of the statute and entitle him to avail himself of the security of the bond of the defendants, and that on this ground he is entitled to recover.

(2.) That under the circumstances of this case, as between the contractor, Cromwell, and the plaintiff and his assignors, Shippey is to be held and recognized as the agent of Cromwell, in the construction of the work upon which the plaintiff and his assignors were engaged, and on this ground the plaintiff is entitled to recover upon the bond the amount thus earned,

To each of these decisions the counsel for the defendants excepted. The referee ordered judgment in favot of the plaintiff for $562.78 and interest, which was entered. On appeal this judgment was" affirmed by the supreme court, at a general term in the 5th district. The defendants appealed to this court.

N. Hill, Jr., for the appellants.

F. Kernan, for the respondent.

The contractor Cromwell was not prohibited by any law from sub-letting the work of constructing the locks agreed to be built by him. But for the provisions, of his contract with the canal commissioners he would have been at liberty to perform his undertaking with the state by sub-contractors or by any other instrumentality that he had pleased to employ.

The provision against subletting was inserted by the canal commissioner in his contract,- for the reason that it was supposed calculated to promote the interests of the state, and secure the faithful performance of the work, and not with a view to benefit the laborers or material men employed upon it. It was an agree1ment by the contractor with the state, and not with those who should labor in building the locks; neither was it made really or nominally for the benefit of the latter. As the canal commis

p. 589

sioners were not required by any law or by any duty to the laborers to require the insertion of this provision in the contract, so the agents of the state after the execution of the agreement, and at any time during its performance, without consulting those employed upon the work, or doing them any injustice, could have consented to erase it or expressly waived a compliance with its terms, or acquiesced in a sub-letting- in violation of it. By the terms of it, the contractor incurred a duty to the state, but not to the laborers, who in turn acquired no rights under it. What would have been the rights or the proper proceedings on the part of the state upon the breach of the obligation not to sublet, whether they could have annulled the contract or sustained an action, it is not necessary to inquire ; it is enough that no rights or remedies would have accrued to the laborers. (Winterbottom v. Wright, 10 M. & W. 109 ; Thomas v. Winchester, 2 Seld. 408; Tollit v. Sherstone, 5 M. & W. 283.) The contract of the canal commissioners with Cromwell was designed to prescribe and regulate the reciprocal rights and duties of the contracting parties as between themselves, and every covenant and agreement on the part of Cromwell was for the benefit and to protect the interests of the state, while the bond in suit was for the benefit of the laborers, and in it the state as such had no interest. The two contracts had each its separate and distinct functions to perform; in each the contracting parties were different and there was no connection between them, except that the bond in suit grew out of the fact that Cromwell, one of the defendants, had become a contractor upon the public works of the state but the terms of his contract did not enter into or regulate the terms and conditions of the bond, which were fixed and regulated by statute. The terms of the contract of Cromwell throw no light upon and afford no aid in the construction of the defendant’s engagement.

The condition of the bond is in .substantial conformity with the statute under which it was taken, (Laws of 1850, ch. 278,) and is to the effect that the said Cromwell “ shall and do well and truly pay or cause to be paid in full the wages stipulated and agreed to be paid to each and every laborer em

p. 590

ployed by Mm or Ms agent or agents, in the construction of the work specified in a certain contract for the construction of locks Nos. 108 and 109, Black River Canal, made &c., as often as once' in each month, pursuant to the provisions of an act of the legislature of this state, passed April 10, 1850, entitled £ An act to secure the payment of wages to laborers employed on the canals and other public works of this state.’ The statute provides that public officers letting any' contract for work for the state, shall require and take, in addition to the bond now required by law for the security of the state, a bond with good and sufficient sureties, not less than two, conditioned that such contractor shall well and truly pay in full, at least once in each month, all laborers employed by him on the work specified in such contract,” &c.

The liability of the defendants depends upon the true construction of their contract, read in the light of the statute in pursuance of. which it was made. Whatever may be the liability of Cromwell, the principal, either to the state or to the laborers employed in the construction of the work done, is the liability of Utley, the surety; and consequently the joint liability of both defendants upon their bond cannot be extended beyond the fair -import of the - undertaking.. The principle is well settled, that a surety is not held beyond the fair scope of his engagement, and that in contracts of suretyship, above all other contracts, the meaning of words and phrases is not to be extended to the prejudice of the surety, but that words shall be taken to have been used in their ordinary popular sense. In other words, the liability of sureties is always strictissimi juris, and shall not be extended by construction. ( Walsh v. Bailie, 10 John. 181 ; U. States v. Jones, 8 Peters, 899; Same v. Boyd & al. 15 id. 187 ; Miller v. Stewart, 9 Wheat. 702 , 703.) The bond provides for the payment of the wages stipulated and agreed to be paid to the laborers employed by Cromwell or his agent or agents', and that upon the failure of Cromwell “ to pay to each and every of the laborers so as aforesaid employed by Mm, as is herein provided, then each and every of said laborers to whom the aforesaid Cromwell shall then be indebted, may

p. 591

bring an action on this instrument in his or her own name, pursuant to the provisions of the act aforesaid, for the recovery of the amount of such indebtedness.” The referee has found that the plaintiff and the other laborers to whose claims the plaintiff has succeeded by assignment, were employed by Shippey, and consequently that they were not employed by Cromwell. Unless therefore the word “ employment” means one thing in the judgment of the referee, and another in the undertaking of the parties, the laborers were not employed by Cromwell within the intent of the bond. It is not the labor performed upon the work alone, which gives the, laborer rights under the bond, but it is labor done in pursuance of an employment'by Cromwell. To employ, is “ to engage in one’s service; to use as an agent or substitute in transacting business; to commission and intrust with the management of one’s affairsand when used in respect to a servant or hired laborer, is equivalent to hiring, which implies a request and a contract for a compensation, and has but this one meaning when used in the ordinary affairs and business of life. By laborers employed by Cromwell, mentioned in the condition of the bond, are intended those hired by him, working at his request, and under an agreement on his part to compensate them for their services; and employment by Shippey, as found by the referee, in this sense excludes the idea of employment by Cromwell. • The plaintiff and his co-laborers were confessedly the servants and agents of Shippey, and could not at the same time and in the same sense be the servants and agents of Cromwell. Shippey was indebted to them upon his contract of hiring, and there being nothing in this case to take it out of the ordinary rule, it follows that Cromwell was not indebted to them upon the same contract. It is not claimed that ordinarily these men could be said in legal or popular parlance to have been einployed by Cromwell; and if not, then as against the surety a different effect should not be given to the transaction or to the words used. We are not at liberty, in order to extend the liability of the parties to the bond, one of whom is a surety, to strike out of the condition the words “ by him .or his agent or agents,” so

p. 592

that it shall provide in terms for the payment of ft each and every laborer employed in the construction of the work,” without reference to the employer. The contract thus modified would be entirely different from that actually made by the parties.

The liability of the defendants is made to rest, in the judgment of the referee and of the court below, in part upon a quasi agency of Shippey for Cromwell in the employment of the laborers and construction of the work, and the relation of principal and agent between them is supposed to grow out of the peculiar circumstances and equities of the case. We have seen that no rights result to the laborers from the agreement not to sublet. It was neither criminal, immoral or illegal to perform the work by sub-contractors. It was merely a violation of contract for which the adverse contracting party had a remedy by action or otherwise. It is not necessary to ignore the under-letting and call it an agency, to avoid the presumption or appearance of illegality or criminality. Third persons had no interest in the covenant against underletting, and the relations of the parties were not changed by reason of it, neither did any equities accrue to third persons in consequence of it. The contractor could not have saved himself from the consequences, whatever they were, of subletting, by calling it an “ agency.” The distinction between a subcontractor and agent is well marked and defined, and the rights and liabilities growing out of the different relations of principal and agent, and contractor and sub-contractor, are equally well understood, and cannot be supposed to have been confounded by the parties to this bond. The distinction is recognized in Blake v. Ferris, (1 Feld. 48,) and in Poole v. Palmer, (9 M. & W. 71.) Whenever the relation of master and servant ceases to exist, the liability by virtue of, or growing out of the relation, ceases. The relation of sub-contractor and agent being entirely distinct and incompatible, and the referee having found that in fact Shippey was sub-contractor, and as such employed the laborers, we could not rightfully adjudge that he was the agent of Cromwell, either in contemplation of

p. 593

-law or of the parties to the contract. Again, the condition of the bond is for the payment of an indebtedness of Cromwell, and such indebtedness cannot be predicated upon an employment by Shippey of servants and laborers to perform for him the work he had undertaken to do for Cromwell, for the compensation and upon the terms agreed upon. Aside from the statute and the bond, it is clear an action would not lie against Cromwell upon any legal liability, or any agreement, express or implied; to pay the laborers employed by Shippey; and if not, then there was no indebtedness by which the obligors became liable by their bond. Their liability is based upon a subsisting legal indebtedness of Cromwell the principal.

But laying out of view the fact that this obligation should be construed as a surety contract, and giving the statute and the bond that reasonable and fair interpretation which their language demand, I can see no ground for asserting the liability of the defendants. We are urged to give these instruments an equitable construction, in view of the supposed equities represented by the plaintiff, and a liberal construction so as effectually to meet the beneficial end which the legislature had in view in the enactment, and prevent a failure of the contemplated remedy. It is beyond question the duty of courts in construing statutes, to give effect to the intent of the law-making power, and se.ek for that intent in every legitimate way. But in the construction, both of statutes and contracts, the intent of the framers and parties is to be sought first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of ■ the framers of the instrument, there is no occasion' to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and. forced construction for the purpose of

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either limiting or extending their operation. Courts cannot correct supposed errors, omissions or defects in legislation, or vary by construction, the contracts of parties. The office of interpretation is to bring sense out of the words used, and not bring a sense into them. (Lieber’s Polit. and Le. Hermeneutics, 87; 2 Ruth. Inst. ch. 7, & 2 ; Story’s Com. on Const. § 392; Purdy v. The People, 4 Hill, 384 ; Smith’s Statutes, &c. § 478 ; Waller v. Harris, 20 Wend. 561 .) The rule is well expressed by Judge Johnson, in Newell v. The People, (3 Selden, 97,) in these words, “ Whether we are considering an agreement between parties, a statute or a constitution, with a view to its interpretation, the thing we are to seek is, the thought which it expresses. To ascertain this, the first resort in all cases, is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case, there is no room for construction. That which the words declare, is the meaning of the instrument; and neither courts nor legislatures have the right to add to, or take away from that meaning.”

In the statute and bond under consideration, we have a clear and precise provision for an indebtedness of Cromwell to laborers employed by him, in the natural reading of the words in their ordinary and most obvious sense, not needing and not admitting of any interpretation. To this extent they interpret themselves. This one class of cases is provided for, and it is now sought to embrace another and distinct class of cases, another set of laborers, upon the doctrine of equitable construction. If the statute and undertaking could have no effect except by resort to this liberal construction and extended application of thése terms,' there would be more reason to resort to conjecture to ascertain the meaning of the framers of the instruments. But full effect can

Dissent

p. 595

be given to the instruments without the unnatural and forced construction sought to be engrafted upon them, and therefore one true sense being given to the words, and that being the apparent and obvious sense, within well settled rules of legal hermeneutics, we cannot properly seek for another sense. (Lieber, ut supra, 86.) As we have seen, the natural and obvious meaning of the statute and obligation is to secure the payment of the indebtedness of Cromwell to laborers employed by him; and the claim sought to be brought by construction within the benefit of the statute and of the agreement, is an indebtedness of Shippey to laborers employed by him, an entirely different matter. Perhaps had the case of sub-letting occurred to the legislature, they would have also provided for it, and perhaps had Utley been requested to become security for Shippey’s debts, he would have done so; but neither has been done, and the courts can neither usurp the functions of the legislature, by doing or assuming as done what they may think should have been done in the way of legislation, or take the place of contracting parties, and vary the terms of their agreements to meet any supposed equities. The cases of King v. Bird, (2 B. & Ald. 52,) Donaldson v. Wood, ( 22 Wend. 395 ,) decided in the court for the correction of errors, and Millered v. The Lake Ontario, Auburn and New- York Railroad Co., (9 How. Pr. R. 238,) are all analogous in principle, and decided upon the rules of legal interpretation which we have sought to apply to this case; and if the principles upon which these cases were, decided are sound, as we believe them to be, they, with the reasoning of the chancellor in 22 Wendell, and of Judge Selden in 9 Howard, apply with full force to the case before us, and are conclusive against the right of the plaintiff to recover.

The judgment of the supreme court must be reversed and a new trial granted, costs to abide the event.

Gtardiner, C. J., Johnson, Parker and Selden, Js., concurred in the foregoing opinion. Denio, J., having been counsel in the cause, took no part in the decision.

This action is brought on a canal contractor’s bond to the people of this state, taken in pursuance of the statute passed April 10th, 1850, entitled “ An act to secure the payment of wages to laborers employed on the canals and other public works of this state.” The facts are stated in the special report of the referee.

The first section of the act of 1850 makes it the duty of the officer having charge of the letting of any of the canals or other public works of this state to require and take, in addition to the bond required for the security of the state, a bond with sureties, “ conditioned that such contractor shall well and truly pay in full, at least once in each month, all laborers employed by him, in the mode specified in such contract.” . The defendants now insist that they are not liable on the bond because the plaintiff and his assignors were hired by Shippey, the sub-contractor, and therefore, as they contend, were not employed by Cromwell, the contractor, within the meaning and intent .of the statute.

In construing a statute, courts must never lose sight of its object and intent. Statutes are to be expounded according to the ordinary sense of the words, unless such construction would be inconsistent with, or contrary to the declared or implied intention of the framers of the law, in which case the grammatical sense of the words may be modified, restricted or extended to meet the plain policy and purview of the act. But in such case the intent must be obvious ánd must be collected from the words of the act. Courts, will not attempt to mould the language of an act for the sake of an apparent convenience, and without the clearest evidence of a corresponding intention in the legislature. In interpreting the -law judges are to explore the intentions of the legislature, yet the construction to be put upon a statute must be such as is warranted by, or at least not repugnant to, the words of the act. Where the object of the legislature is plain and unequivocal, courts ought, without violence to the words, to adopt such a construction as will best effectuate the intentions of the lawgiver. (Dwarris on Statutes. 582, 3, ed. of 1848.) And where words are ambiguous,

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or where they are such as to admit of two senses, the courts will read and interpret them in that sense which will carry the manifest intention of the legislature into effect. (Dwarris, 588.)

The object and intent of the act in question are obvious, plain and unequivocal. They are expressly declared in the title of the act already recited; and every section and portion of the act relate to the object and purpose expressed in the title. Before the statute was passed, it had frequently happened that laborers who actually performed the work, were defrauded of their wages by the contractors. The object of the act was to remedy this evil. It may be so construed as to embrace the plaintiff’s case without the perversion or distortion of any of its language. The question arises upon the use in the statute of the words “ employed by him,” the contractor. They were in fact hired by Shippey. But “ hiring” and ■ “ employing” are words of different meaning. To hire is to engage in service for a stipulated reward; as to hire a servant for a year, or laborers by the day or month: to engage a man to temporary service for wages. To employ is a word of more enlarged signification. A man hired to labor is employed, but a man may be employed in a work who is not hired. Materials are employed for building locks, but they are not hired ; and a man who does his own work or the work of another is employed in it, although he receives no wages. To employ, is to use as an instrument or . means of effecting an object. This is one of the senses in ' which the word is commonly and frequently used, and in that sense the sub-contractor and all his laborers were employed by Cromwell; they were used by Cromwell as the means by which he caused the work to be done ; although none of them, strictly speaking, were hired by him. We are bound to read and understand the words “ employed by him,” used in the statute and in the bond, in that sense which will suppress the mischief and advance the remedy contemplated by the law. According to the legitimate import of the words of the first section, the plain

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tiff’s case is not only within the spirit of the law, but within its letter.

But it is contended that the third section requires that we should give the act a different construction, and limit the liability of the defendant to the laborers actually hired by him, and who could recover against him on his contract of hiring. That .part of the third section referred to by the defendant’s counsel, is in these words: “ The bringing of a suit by one or more laborers upon such bond, shall not operate as a bar to bringing other suits thereon by any of the parties for whose benefit such bond was taken, and to whom such contractor shall be indebted for labor.”

I am inclined to the opinion that Cromwell was legally indebted to the laborers, for work done upon his job. He was the contractor with the state. He was prohibited by his contract from underletting, but nevertheless he did underlet a part of the work to Shippey., This underletting was however concealed from the laborers. Cromwell retained a portion of the work to be done under his own direction and superintendence, and this must be presumed to have been so done. Cromwell received from the state the money the laborers earned. From the nature of the transaction and the course of the business, the fact of his being the contractor must have been known to the laborers ; and to all outward appearance Shippey was acting not as a sub-contractor, but as the agent of Cromwell in the prosecution of the work. Under these circumstances the laborers must be presumed to have dealt with Shippey, under the belief that he was Cromwell’s agent, although the hiring was in Shippey’s name. The contract between Shippey and the laborers was not in writing; and it does not appear that they gave exclusive credit to Shippey, the ostensible agent. Cromwell permitted the laborers to go on with their work under the supposition that they were entitled to look to him as Shippey’s principal. He misled them by concealing the fact that Shippey was a sub-contractor; and having done so, he would not be at liberty to set up . that

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fact as a defense to an action against him as Shippey’s principal, in an action for the laborers’ wages. I think therefore that he was indebted to the laborers hired by Shippey, within the meaning of the third section of the statute of 1850.

But again, suppose the construction which the defendant puts upon the statute be so far correct, that in the absence of fraud, concealment or bad faith, the liability of the defendant on his bond would be limited to the laborers actually hired by him, there are further substantial reasons why he ought to be precluded from setting up the defense he relies on.

The sub-letting and its concealment were not only a violation of his contract, but they were a fraud upon the state, and upon the laborers. The statute was intended for the protection of all the laborers upon the public works ; and the bond given in pursuance of it would have been an effectual protection to the plaintiff and his assignors, if this fraud had not been practiced. The sub-letting was a fraud upon the state, because it enabled the defendant, as contractor, to obtain money from the treasury to which he was not entitled. If the defendant’s construction of the statute be correct, it was the duty of the auditor of the canal department, immediately upon notice of the sub-letting, to withhold the payments for the work until the canal commissioner should consent to the sub-letting, and adopt the sub-contractor in lieu of the defendant; and in that event, still further to withhold payment, until the new contractor should give the security to the laborers required by the act of 1850. It is the duty of the state officers to give effect to this statute according to its manifest intent; and not to permit any contractor to escape from his liability on his bond to the laborers on his job. There is no proof that any of the state officers had notice of the sub-contract between Cromwell and Shippey ; and it is to be presumed that they had no such notice; because if they had they would in the course of their duty have withheld the payments to Cromwell; and a neglect of that duty is against legal presumption. If the fraud had not been practiced, the laborers would have had an un

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doubted remedy; and it is only through the instrumentality of this fraud that the defendant can make his defence available. Nothing is better established in the law than that a party shall not be permitted to allege his own fraud as the ground of an action or a defense. Cromwell should be precluded from setting it up. The case ought to stand on the same footing as if there had been no sub-contract, and as if the laborers had been hired by Cromwell. The judgment below ought to be affirmed.

Edwards, J., concurred in the foregoing opinion.

Judgment reversed.

Mote.—In the case of Robertson against Bullions, reported at page 243, ante, Johnson, J. dissented from the second proposition stated in the close of the opinion of Selden J., but he concurred in the other propositions stated by Selden, J.

[the REMAINDER OF DECEMBER CASES IN NEXT VOLUME.]

Cases cited

Donaldson v. Wood & Wood 22 Wend. 395 N.Y. p. 595