Young vs. French. he had property of the firm in his possession, and was going t› pay all the hands, and would pay plaintiff's claim first; that plaintiff then said he would not file any lien if French would secure him, and French answered: "If you don't make any disturbance and file any lien, I will pay you;" that plaintiff then asked French for his note, but the latter answered that he did not give any note, but could fix the due bill so that it would be just as good as a note; that French then took the due bill and made the indorsement aforesaid; and that, after such indorsement was made, plaintiff said, "If I don't get my pay of McGilton, Bracklin & Co., I shall look to you for my pay," and French answered, "Certainly." "I never held The defendant testified in his own behalf: out to the plaintiff or anybody else that I was responsible for any of McGilton, Bracklin & Co.'s debts. I never agreed individually to pay this due bill. I refused to give my own note, or to become responsible to the plaintiff in any way." The evidence showed that the labor for which the due bill above mentioned was given, was performed by him "as cook for the loggers in a logging camp of McGilton, Bracklin & Co." The defendant asked the court to charge the jury, "that if they found from the evidence that defendant made the promise of payment, not as the agent of McGilton, Bracklin & Co., but as his own promise, and that the consideration for such promise moved to and was for the benefit of McGilton, Bracklin & Co., and not the defendant, the plaintiff could not recover." This was refused, and the court by its charge left it to the jury to determine as a question of fact, whether the defendant agreed to become individually responsible for the debt, and to pay it, or whether he acted simply as the agent of McGilton, Bracklin & Co., instructing them, among other things, that if he did agree to become individually responsible for the debt, and to pay it by November 15, in case the plaintiff would forbear to sue for his claim, then the plaintiff could recover, if said promise was founded upon a valuable consideration moving to the defendant. Young vs. French. Verdict for the plaintiff; new trial denied ; and defendant appealed from a judgment on the verdict. F. J. McLean, for appellant: 1. By the plaintiff's own showing, the defendant's promise was collateral, contingent and conditional, thus being plainly within the statute of frauds. Leonard v. Vredenburgh, 8 Johns., 29; Williams v. Leper, 3 Burr., 1886; Wyman v. Goodrich, 26 Wis., 21; Houghton v. Ely, id., 181; Mallory v. Gillett, 21 N. Y., 412; Brown v. Weber, 38 id., 187; Meriden Britannia Co. v. Zingsen, 48 id., 247; Dyer v. Gibson, 16 Wis., 557. 2. The work of the plaintiff was "cooking" for McGilton, Bracklin & Co., and he was not entitled to a lien upon the logs for such work. Bundy & Macauley, for respondent: 1. The due bill on its face is the promise of the defendant individually (De Witt v. Walton, 5 Seld., 570); especially as the defendant did not appear to have any authority from McG., B. & Co. to make any such contract. Dennison v. Austin, 15 Wis., 334. 2. The court properly treated it as a question of fact for the jury, on the evidence. Simonds v. Heard, 23 Pick., 120; Shattuck v. Eastman, 12 Allen, 369; Tucker Manufacturing Co. v. Fairbanks, 98 Mass., 101; Dennison v. Austin, above cited; Fredendall v. Taylor, 23 Wis., 538; Cunningham v. Soules, 7 Wend., 106. The promise was a new and distinct one for a new and valuable consideration, and amounts to defendant's promissory note. The statute of frauds has nothing to do with it. Boyd v. Freize, 5 Gray, 553; Leonard v. Vredenburgh, 8 Johns., 29. 3. It is immaterial whether the plaintiff was entitled to a lien or not. The defendant chose not to contend against his claim, and cannot now impeach it. Crans v. Hunter, 28 N. Y., 389; Fish v. Thomas, 5 Gray, 45; Seaman v. Seaman, 12 Wend., 381; Stewart v. Ahrenfeldt, 4 Denio, 189. The plaintiff also had a remedy by attachment or execution, which he forebore to prosecute. Mallory v. Gillett, 21 N. Y., 415; Jackson v. Rayner, 12 Johns., 291. It is not necessary Young vs. French. that such consideration work a benefit to defendant; it is enough that it works harm to the plaintiff. Shook v. Van Mater, 22 Wis., 532; Prentice v. Wilkinson, 5 Abb. Pr., N. S., 49. 4. The defendant had a fund in his hands, out of which he could pay the debt, and he represented that plaintiff's debt should be first paid; and he is now estopped from saying that the fund was not sufficient. Lippincott v. Ashfield, 4 Sandf., 611; Fish v. Thomas, above cited; Jackson v. Rayner, 12 Johns., 291. COLE, J. In Dyer v. Gibson, 16 Wis., 557, the chief justice opens the opinion with some observations so very pertinent to the facts of this case and the question of law involved, that I cannot do better than quote them here. He says: "We cannot discuss the question whether the promise of one person, though in form to answer for the still subsisting debt of another, if founded upon a new and sufficient consideration moving from the creditor and promisee to the promisor, and beneficial to the latter, is within the statute of frauds, and therefore void unless it be in writing expressing the consideration and subscribed by the party making it. Decision has been multiplied upon decision, with scarce a syllable of conflict, for more than a century, that such a promise is not reached by the statThe distinction is between cases where the person promising has for his object a benefit accruing to himself, in which the original debtor has no interest, and from which he derives no advantage, and where his primary and leading object is to become surety for the debt of another without benefit to himself, but for the exclusive advantage of the other parties to the contract." The distinction here made, that where the party promising has for his object some benefit and advantage accruing to himself, and on that consideration makes the promise, distinguishes the case of an original undertaking from one within the statute. Brown v. Weber, 38 N. Y., 187. ute. * * In the present case, there can be no doubt that the jury found, under the instructions of the court, that the defendant agreed Young vs. French. to become individually responsible for plaintiff's claim, and agreed to pay it by November 15th, if the plaintiff would forbear to sue or desist from enforcing his lien. Assuming that these facts were established by the evidence, the question arises, Was the defendant's promise valid? We think the question must be answered in the affirmative. The promise was founded upon a new and distinct consideration moving from the plaintiff to the defendant. The defendant was in possession of the logs under the agreement, and he was directly interested, to the extent of his commissions, in retaining the possession and in disposing of the lumber manufactured from them. If the logs, or any portion of them, should be taken from his possession and control by the plaintiff to satisfy his lien, his commissions would be correspondingly diminished. It was a benefit and advantage to the defendant that the plaintiff should not enforce his lien and take the property out of his possession. For, if this were done, his commissions on that property alone would be lessened $15, or thereabouts. The plaintiff was induced to relinquish his lien, upon the promise of the defendant to pay the debt. And that promise, though in form it was to pay the debt of McGilton, Bracklin & Co., yet was founded upon a new and valuable consideration moving from the plaintiff to the defendant, and beneficial to the latter. It was a matter of personal interest and profit to the defendant to retain possession of the property which the plaintiff was about to seize under his lien proceeding. And in consideration that the plaintiff would relinquish that proceeding, and leave the logs in his possession, he made the promise. Under the charge of the court, the jury must have found these facts. In that case, the undertaking of the defendant was not collateral to the promise of McGilton, Bracklin & Co., but was an original contract, founded upon a sufficient consideration arising directly between him and the plaintiff. And it was quite immaterial whether such a promise was in writing or rested in parol. A class of cases quite analogous in principle to the one before us, is referred to by C. J. Jalie vs. Cardinal and another. COMSTOCK in his opinion in Mallory v. Gillett, 21 N. Y., 412, on pages 429 and 430. It is said the plaintiff was not entitled to a lien upon the logs by reason of his services, because he acted as cook for McGilton, Bracklin & Co., and did not perform labor directly upon the logs. We do not agree in this construction of the statute giving a lien for labor and services upon logs and lumber. But it is unimportant whether the plaintiff in fact had a valid lien or not. The defendant treated with him on the assumption that he had such a lien, and chose rather to buy him off than to contest its validity. It results from these views that the judgment of the circuit court must be affirmed. By the Court. Judgment affirmed. JALIE VS. CARDINAL and another. (1-9) LIABILITY OF INNKEEPER. (7-9) Contributory negligence of guest. (4, 8, 9) Court and jury. (11) Reversal of judgment. (12) New trial for new evidence. 1. Action upon defendants' liability as inn-keepers for the loss of money brought by plaintiff to their inn. Plaintiff was not a neighbor or friend of defendants, but a traveler residing at a distant place, who sought their inn for temporary lodging and entertainment. On coming thereto he asked one of the defendants whether they took boarders, and, being answered in the affirmative, inquired and was told the price of board by the week, and was thereupon received into the house. His intention, not communicated to defendants, was to remain only three or four days. Held, that there was no error in a refusal to instruct the jury that "if plaintiff was stopping at the hotel under an agreement to board by the week, he was not a guest but a boarder, and the common law liability of an innkeeper for the property of his guest did not apply." 2. If one goes to an inn as a wayfarer and a traveler, and the inn-keeper receives him as such, the relation of landlord and guest, with all its rights and liabilities, is instantly established between them. |