Holmes v. Suffrin, 198 Ill. App. 45 (1916)

Feb. 14, 1916 · Illinois Appellate Court · Gen. No. 21,844

198 Ill. App. 45

Oliver W. Holmes et al., trading as Holmes, Pyott & Company, Appellees, v. David Suffrin, Appellant.

Gen. No. 21,844.

(Not to be reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the October term, 1915.

Affirmed.

Opinion filed February 14, 1916.

Rehearing denied February 28, 1916.

Statement of the Case.

Action by Oliver W. Holmes, James M. Pyott and David A. Pyott, trading as Holmes, Pyott & Company, a copartnership, plaintiffs, against David Suffrin, defendant. From a judgment for plaintiffs for $1,414.47, defendant appeals.

The evidence showed that defendant was the owner of a building in Chicago and June 7, 1911, contracted with the United Construction Company for the remodeling and improvement of his building. The Construction Company June 8th made a contract with plaintiffs to furnish and erect the structural and ornamental iron and steel work required in such improvement for the sum of $2,189. The contract between defendant and the Construction Company included a waiver of the right to a mechanic’s lien, but this was not known to the plaintiffs until after the controversy out of which this suit grew had arisen. The Construction Company failed to pay plaintiffs the amount due them under the contract as the same became due. The contention of plaintiffs is that defendant promised, in case the plaintiffs would proceed with and complete the work they had undertaken to pay them the amount due and to become due, and that this was a direct and original promise and not within the Statute of Frauds; that the promise to pay the plaintiffs was. based on a sufficient consideration and therefore was original so far as defendant was concerned.

Abstract of the Decision.

1. Contracts, § 385 ^* —when evidence sufficient to show promise to pay. In an action by a subcontractor against the owner of the property, evidence examined and held sufficient to warrant a finding that defendant had promised to pay the amount due and to become due under the subcontract.

2. Frauds, Statute of, § 12*—when manner in which account charged evidence of original promise. In an action by a subcontractor against the owner of the property to recover the amount due for work done by plaintiff, where it is claimed that the work was done under a promise- of defendant to pay, evidence that the account was charged on plaintiff’s books, to the principal contractor, while strong evidence, when unexplained, to show that the credit was given to the latter, is not conclusive of the fact.

That the promise was made was testified to by Netchin, Holmes, Pyott, Anthony, Forcey and Shober, and denied by Suffrin.

Goldzier, Rodgers & Froehlich, for appellant; Edmund W. Froehlich, of counsel.

Harris F. Williams, for appellees; George F. Ort, of counsel.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

* See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Baker

delivered the opinion of the court.

3. Frauds, Statute of, § 2 ^* —when debtor not released by oral promise. A valid oral promise may be made with regard to the debt of a third person without releasing the original debtor.

4. Frauds, Statute of, § 126*—when evidence sufficient to show promise to be original. In an action by a subcontractor against the owner of the property to recover on a promise to pay for the work done under the contract, evidence examined and held sufficient to warrant a finding that the promise was direct and original and not within the Statute of Frauds.