JOHN W. KELLER, Respondent, v. HENRY G. BLASDEL, JOHN FALL, DR. PINKERTON et als., known as the Building Committee of the Methodist Episcopal Church, Appellants
Keller v. Blasdel
JOHN W. KELLER, Respondent, v. HENRY G. BLASDEL, JOHN FALL, DR. PINKERTON et als., known as the Building Committee of the Methodist Episcopal Church, Appellants.
JOHN W. KELLER, Respondent, v. HENRY G. BLASDEL, JOHN FALL, DR. PINKERTON et als., known as the Building Committee of the Methodist Episcopal Church, Appellants.
If a contract is drawn np between certain parties for work to be performed by one party, for a compensation to be paid by tbe other, and one of the parties. neglects to execute it, and either by his silence or otherwise encourages the other to proceed with the work, the party not signing it would be liable, either upon the written contract or upon an implied contract, for the value of the work.
Persons jointly liable must all be made defendants, and a joint judgment rendered against all.
When one of the parties to a written contract fails to sign it, the presumption is that he has abandoned it. To overcome such presumption it is necessary for the party relying on the contract to prove that the other party authorized or encouraged him to proceed under the contract.
Appeal from tbe District Court of the Eirst Judicial District, State of Nevada, Storey County, Hon. Riohaed Rising presiding.
Bewrdon <& Hereford, for Appellants.
Taylor & Oa/nypbell, for Respondent.
Opinion by
Lewis, C. J.,
full Bench concurring.
This action was brought to recover the sum of fifteen hundred and sixty dollars for work and labor performed on the Methodist Episcopal Church in the City of Virginia. The plaintiff declares against four defendants, styling them the Building Committee of the Methodist Episcopal Church. A jury having been waived, the case was tried by the Court, who found as matter of fact, " that the plaintiff, in the months of October and November, 1863, at the instance and request of H. Q-. Blasdel and one Prince, performed work and labor, furnished and delivered materials, in and about the plastering and cornice work upon the premises known as the Methodist Episcopal Church in the City of Virginia," and after finding the value of the work and materials furnished, and also the amount paid plaintiff on the contract, finds as a conclusion of 'law, that the plaintiff is entitled to judgment against the defendants Blasdel and Prince for the sum of thirteen hundred and thirty-eight dollars, and judgment for that sum was regularly entered. There is scarcely a scintilla of testimony in the record to sustain the finding of the Judge below, or to authorize a joint judgment against the appellants. It appears from the evidence that a contract was drawn up between the plaintiff and the Building Committee of the church, which was signed only by himself. It also appears from bis own testimony tbat Paul, Deal, Prince and Antbons were tbe persons wbo were to execute it on bebalf of tbe Committee. Tbougb signed by bimself alone, tbe plaintiff seems to bare treated tbe contract as fully executed, and acted upon it accordingly. No other contract is shown between bimself and tbe Committee. No explanation is offered as to why tbe one above referred to was not signed by those wbo were to execute it; • nor is. tiñere anything to show tbat tbe Committee bad anything whatever to do with tbe contract above referred to, either by authorizing it to be drawn up or subsequently ratifying it. If it were drawn up by their authority and they merely neglected to execute it, without intending to abandon it altogether, and either by their silence or otherwise encouraged tbe plaintiff to proceed with tbe work, be not knowing tbat they were merely acting as tbe agent of tbe church association, they would undoubtedly be liable either on tbe written contract or for tbe reasonable value of tbe work so performed. But on tbe other band, if tbe contract was entirely abandoned by tbe Committee, and tbe plaintiff went on to do tbe work without any authority from them, they cannot of course be bolden to him. 'Whether this was in fact tbe case, it is impossible to determine from tbe evidence presented to us in tbe transcript. Tbe presumption which naturally arises from tbe failure to execute tbe contract is, tbat it was entirely abandoned. To overcome this presumption tbe plaintiff should have shown tbat tbe Committee in some way authorized or encouraged him to proceed with tbe work. This is not done. Tbe plaintiff, therefore, failed to make out a case against tbe Building Committee as such. But even if it be admitted tbat tbe evidence is sufficient to establish tbe plaintiff's case against tbe Committee tbe judgment is erroneous, for if any liability whatever be shown, it is a joint, and not a several liability, and tbe judgment should have been rendered against all tbe members of tbe Committee or none. Persons jointly liable must all be made defendants, and a joint judgment rendered against all. It is shown by tbe testimony in this case tbat other persons besides those against whom judgment was rendered were members of tbe Committee, and were equally liable, if indeed any of them can be holden. It only remains to be determined whether the testimony in the case establishes any liability on the part of the defendants, against whom judgment is rendered, independent of the Building Committee. We think it does not. The only expressions in the entire testimony from which any individual liability might be infeiued are the following sentences which occur in the plaintiff's testimony : " I did the work named in the complaint. I did it for the defendant, Blasdel, as I thought." But this expression, taken in connection with the balance of his evidence, clearly shows that no such individual liability exists.
Plaintiff shows by his own testimony that he treated the contract with the Committee as fully executed and binding upon them, and that he did the work under it. He also swears that the only parties who were to sign that contract were Paul, Deal, Prince and Anthons. How is it possible, then, that he thought he was doing the work for the defendant Blasdel ? The plaintiff seems to have concluded that because the contract was drawn up at the request of the defendant Blasdel, he was liable upon it. He says: " I made the contract with Governor Blasdeland yet the contract itself shows that it was not with him, but with the Building Committee, for that is the only contract referred to in the testimony. The fact that the defendant Blasdel was not to sign it is conclusive that he did not intend to be bound by it, and there is no evidence of any other contract between him and the plaintiff. There is no evidence whatever tending to establish any liability on the part of the defendant Prince, independent of the other members of the Committee, or jointly with the defendant Blasdel. As there were several other members of the Committee, it was error to render judgment against him as one of the several joint contractors.
Judgment must be reversed and cause remanded.