Johnson v. Coyne

FINCH, P. J.

— The plaintiff, as assignee of Nelson Brothers, brought this action to recover an amount alleged to be due for labor performed and materials furnished in the painting and decorating of the interior of a dwelling-house and to foreclose a lien for the value of such labor and materials. The court found against the existence of the alleged lien, but entered judgment against the defendants Coyne and Weisman for the amount demanded in the complaint. The defendant Coyne has appealed from the judgment.

The appellant contends that, at most, the evidence merely shows that he made an oral promise “to answer for the debt or default” of Weisman, and that such promise is invalid because not in writing. It is conceded, of course, that the evidence must be viewed in the light most favorable to the respondent, and all contradictory evidence is omitted.

Prior to May 8, 1923, Coyne and his wife were the owners of the property involved in this suit. On that day they conveyed it to S. R. and Elizabeth S. Ow, who in turn gave Coyne and his wife a mortgage on the property to secure a promissory note for $15,000, and on July 5, 1923, Ow and his wife executed a trust deed to secure another promissory note in favor of the Coynes for $7,500, payable November 8, 1923. Thereafter and prior to the employment of the Nelsons, Ow and his wife conveyed the property to Weisman, subject to the mortgage and the trust deed. After the completion of the work and before the commencement of this suit, the property was sold under the trust deed, Coyne and his wife becoming the purchasers, their bid being the only one made at the sale. The following evidence appears in the record, the quotations, except as otherwise stated, being taken from the testimony of R. A. Nelson, one of the Nelson Brothers: “Mr. Coyne told us that he intended selling the house to a man named Mr. Weisman, and the condition of the house at the present time it couldn’t be resold; so he was trying to arrange to have us redecorate it, and arrange a contract with Mr, Weisman for the redecorating of

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it, but yet Mr. Weisman didn’t have any money, he was quite sure, and he wasn’t quite sure Mr. Weisman would be able to pay for the contract; and if he didn’t pay us, not to worry, that he, Mr. Coyne, would pay us. . . . He told us not to worry; that he would see the money got to us all right. ’ ’ On the following day the Nelsons met with Coyne and Weisman at the house in question. They were then informed for the first time that Weisman had purchased the property. “Mr. Coyne called me to one side and asked me about what my figure was. ... I told him the price was $1,143, and he said: ‘Well, I don’t hardly think you will be able to get it out of Mr. Weisman, but if not I will pay you. . . . Figure about $200 on that price for me, in ease he does pay you,’ . . . but if Mr. Coyne was to pay it, he would pay $1,143.” The Nelsons and Weisman thereupon agreed upon a price of $1,343 for the work, but no written contract was executed. “We were to receive $500 in 30 days, $643 in 60 days and $200 in 90 days. . . . After we had started to work, Mr. Coyne advised us to take our time on it, because he told us he didn’t think Mr. Weisman was financially able to pay it, and to give him plenty of time to get it. And 30 days, when our first payment of $500 came due, we hunted up Mr. Weisman, and Mr. Weisman informed us that he was unable to pay us at that time; and we went to Mr. Coyne and told him that, and Mr. Coyne told us the best thing for us to do would be to knock off the job; and he said he knew Mr. Weisman couldn’t get anybody to duplicate our work or finish the job; and Mr. Weisman also knew that; and if we knocked off the job we might bring Mr. Weisman to terms and persuade him to get the money.” The Nelsons then quit work for “two weeks or more” and then returned at Coyne’s suggestion. “He came to our house one evening and told us ... he thought he had it arranged for Mr. Weisman to sell the house to a Mr. Eiseman; that Mr. Coyne would take care of the first initial payment due us, and we could enter into a contract for the balance of the work to be done, with Mr. Eiseman.” About forty per cent of the work had been done at that time. Before commencing work under the original contract, “Mr. Coyne told us . . . hot to do anything on the house without consulting him first, in regards to colors and one thing and another.” Coyne “told us to go ahead and draw up a con