entered into any agreement with the plaintiff, nor by any resolution or order authorised any officer of the Board to agree with him for the performance of the work in question.

The plaintiff, for the first time, on the 20th of November, 1869, through his solicitor, applied to the defendant for payment of the said work, and the defendant having refused to pay him, he commenced this action.

15. At the trial, at the close of the plaintiff's case, the counsel for the defendant submitted a nonsuit on the ground that there was no evidence of any liability on the part of the defendant. The learned Judge declined to nonsuit, stating that in his opinion there was evidence to support a count in the amended form hereinbefore set forth, and which he at the same time gave the plaintiff leave to add to the declaration.

16. The defendant's case was then entered upon, and the defendant was called as a witness. He said that it was untrue that he said that he would see the plaintiff paid, but that according to his recollection at the aforesaid interview he did advise the said Robert Adams, the surveyor, to go with the plaintiff to the owners of the houses in question, and to try to persuade them to employ plaintiff to do the work, and that this was all that passed.

The learned Judge left it to the jury to say whether they believed the plaintiff or defendant, and whether the conversation deposed to by the plaintiff and denied by the defendant took place.

17. The jury returned a verdict for the plaintiff, 2871. 78. 7d., being the amount claimed by the plaintiff for the work done and materials provided, and admitted upon the trial to be a reasonable and proper amount. Leave was reserved to the defendant to move to enter a nonsuit if it should that there was no evidence appear either upon the original declaration or upon the declaration as amended, which ought to have been left to the jury.

In Easter Term, 1870, the defendant obtained a rule to shew cause why the verdict obtained should not be set aside and a nonsuit entered instead thereof, on the ground that there was no evidence of an original liability on the part of the

defendant to the plaintiff for the work to be done, or why a new trial should not be had between the parties on the ground that the verdict was against the evidence.

The first part of the rule the Court of Queen's Bench afterwards made absolute, and the following is a copy of the rule absolute

"In the Queen's Bench, Thursday, the 30th day of June, 1870, in the 34th year of Queen Victoria, Mountstephen v. Lakeman. Upon reading the rule made in this cause, on Thursday, the 21st day of April, in Easter Term last past, and upon hearing Mr. Lopes, of counsel for the plaintiff, and Mr. Cole, of counsel for the defendant, it is ordered that the verdict obtained in this cause be set aside, and a nonsuit entered instead thereof.

"By the Court."

Due notice of appeal has been given, pursuant to the said Act.

The Lord Chief Baron's notes of the evidence given at the trial may (if necessary) be referred to as part of this case.

The question for the opinion of the Court of Appeal is, whether or not the defendant is entitled to have the nonsuit entered.

If the Court shall be of opinion in the negative, then the verdict for the plaintiff to stand, and judgment to be entered for him for the damages assessed by the jury, with costs of suit.

If the Court shall be of opinion in the affirmative, then the verdict for the plaintiff to be set aside and a nonsuit entered with judgment for the defendant accordingly and with costs of defence.

A. Charles (Lopes with him) for the plaintiff. It is submitted that the decision of the Court below was wrong, and that the plaintiff is entitled to retain the verdict on two grounds. First, there is evidence under the amended count, or on the common count, of an original liability on the part of the defendant. It must be assumed, from the finding of the jury, that the conversation between the plaintiff and the defendant was in the terms stated by the plaintiff, and this conversation shews that a primary liability and not a suretyship was contemplated. Secondly, the contract in any view of the facts is not

That

within the Statute of Frauds. statute only applies to collateral engage ments, or to cases where there is a debt or liability on the part of a third person, independently of the engagement of the guarantor. [He referred in support of the last proposition to the following authorities Chitty on Contracts, 8th edit. p. 475; Brown on the Statute of Frauds (American), 2nd edit. s. 156; Read v. Nash (1), Harris v. Huntback (2), Hargreaves v. Parsons (3), Cripps v. Hartnall (4), Green v. Cresswell (5), Couturier v. Hastie (6), Cherry v. The Colonial Bank of Australia (7). It will be seen, however, that it became unnecessary to give judgment on this point.]

Cole (Pinder with him).-When the facts are rightly understood it will appear that there is no ground for saying that there was any original liability cast upon the defendant. It must be borne in mind that this was not the case of one large contract, but of a number of small ones, namely, the connections between the sewer and the respective houses. The conversation between the plaintiff and the defendant cannot be construed to mean that a primary liability in the latter was intended. The occupiers being irresponsible people, the plaintiff was unwilling to trust them, and then the arrangement made was substantially that if the defendant would be a surety for them, the plaintiff should do the work. This contention is strongly supported by pars. 8 and 9.

[WILLES, J.-The jury having found that the conversation, as described by the plaintiff, took place, the only question for us is whether there was any evidence for the jury. The upshot of the matter is that the defendant is liable on the count for work and labour, or not at all.]

Keate v. Temple (8), cited in the notes

(1) 1 Wils. 305.

(2) 1 Burr. 373.

(3) 13 Mee. & W. 561; s. c. 14 Law J. Rep. (N.S.) Exch. 250.

(4) 4 B. & S. 414; s. c. 32 Law J. Rep. (N.s.) Q.B. 381.

(5) 1 Wms. Saund., last edit., vol 1, p. 229. (6) 8 Exch. Rep. 40; s. c. 22 Law J. Rep. (N.s.) Exch. 97.

(7) 38 Law J. Rep. (N.s.) P.C. 49. (8) 1 Bos. & P. 158.

to Birkmyr v. Darnell (9), shews that the Court should take into consideration the particular situation of the defendant, and all the surrounding circumstances as well as the expressions used. So here the Court will look at the conduct of the parties, which is consistent with the intention of the defendant that he should give a guarantee, but not that he should be primarily liable.

[KEATING, J.-In Keate v. Temple (8) the case was left to the jury. See the note to Forth v. Stanton (10). At the trial of this cause a nonsuit was claimed on the ground that there was no evidence to go to the jury. The only question for us now is whether there was any reasonable evidence to go to the jury.]

There was no evidence of the orginal liability of the defendant. Peckham v. Faria (11) is much like this case. The head-note is as follows: "A. & B. came to the plaintiff's warehouse, and agreed on a parcel of goods for A., and B. said that he would guarantee the payment. A. afterwards came alone, and ordered other goods, when the plaintiff sent to B., and asked him whether he would engage for A. B. replied, I will pay you if he does not.' The goods were subsequently delivered to A.:-Held, that this was a collateral promise by B., and required to be in writing by the Statute of Frauds." Here the plaintiff intended to give credit to the Board, and he sent in his account to the Board. In Throop on the Validity of Verbal Agreements, vol. i. cap. 7, p. 255, there is a discussion as to the law bearing upon the point, "When the promise was to see the promise paid, or words to that effect." The cases upon the subject are collected, and the conclusions of the author are much in favour of the view now submitted on behalf of the defendant. There was no legal incapacity in the Local Board to make the contract with the plaintiff. If there had been an application to it, the contract would have been made. The question is not in any way affected by the fact of its being a Local Board. But, even if the Court should decide in favour of the plaintiff, the proper course to adopt, (9) 1 Smith's L.C. 274. (10) 1 Wms. Saund. 211b. (11) 3 Dougl. 13.

under the circumstances, would be to direct that there should be a new trial.

Charles, in reply. The only question here is, whether there was any evidence upon which the jury might reasonably find a verdict for the plaintiff. Keate v. Temple (8), and the other cases relied on, have no bearing upon that question. If the contention on behalf of the plaintiff, that a verbal order is sufficient in point of law, is correct, it is clear that there is ample evidence to support such a promise. There is no ground for saying that it must be in writing. Clearly, the occupiers were not liable, inasmuch as the period of twenty-one days had not expired. Further, there was no mutual mistake or common error between the parties. It is a case of primary liability, which cannot be turned into a case of suretyship by merely calling it so.

WILLES, J.-This is an appeal against a rule made absolute by the Court of Queen's Bench, directing that a nonsuit should be entered, upon leave reserved for that purpose. The trial took place before the Lord Chief Baron, and it appeared in evidence that the plaintiff claimed to be paid by the defendant for certain work which the plaintiff performed upon the connections between house drains and sewers, that fell within the scope of the Board of Health for the district of Brixham, of which board the defendant was the chairman. The board contemplated the execution of certain works, and especially of certain sewers in respect of those works. On the 19th of March, 1866, notice was given by the board to the owners of houses in the town of Brixham to connect their house drains with the main sewer; that notice would expire in twenty-one days. Under that notice, pursuant to the Act, the owners were bound to do the work during the twenty-one days, if they chose to do it themselves, and if they did not do the work within those twenty one days, then the board had authority by the statute to proceed to do the work, and to charge the price against the owners. Upon the same 19th of March the board resolved that the plaintiff be requested to procure pipes as mentioned in the case.

That resolution I must refer to, because Mr. Cole made a point on the main question in this case in respect of the use of some of the pipes which were ordered and procured in pursuance of that resolution. An order was obtained from the surveyor, signed by the clerk of the board, and the pipes were sent in and delivered to the plaintiff, who afterwards deposited them in the yard of the local board, some of them remaining in their possession up to the time of the action. Before the twentyone days expired, and whilst the main sewer in respect of which the connections were to be made with the house drains was being constructed, the surveyor of the board, notwithstanding that the twentyone days had not expired, proposed to the plaintiff that he should construct the connections between the house drains and the main sewer. Upon that he received an answer that the plaintiff was willing if the board would see him paid.

Now that is the state of things upon the 5th of April, which is the day on which the conversation took place between the defendant and the plaintiff, in respect of which the plaintiff now insists that the defendant has become personally liable to pay for the work done in respect of the connections. On that day, the 5th of April, the plaintiff did commence working at the connections between the houses and the main sewer, and he continued to do so during the month of April and during part of the month of May; and it is in respect of the work done during that period that he recovered against the defendant the sum of 2871. 78. 7d. With respect to the mass of that sum, it represents work and materials provided by the plaintiff after the conversation with the defendant which is set out in the case. It has been suggested that, with respect to a portion of the materials which were used during that period, the precise amount of which it is not easy to collect from the notes, that the materials which were used were materials which had been ordered in advance by the board, and had been supplied by the plaintiff to the board. Mr. Cole, in the course of his argument, asked us, at all events, to say that, with respect to such a sum as might represent those materials, there was an original liabi

lity on the part of the board, and in respect of that at least his client was entitled to relief. I think it right, however, to say that no materials for disposing of that question appear upon the case before us. The question reserved was simply whether or not the defendant is entitled to have a nonsuit entered. The sum of 2871. 7s. 7d. was taken to be the sum for which the defendant was liable, if he was liable at all, and there was no reservation for the Court of Queen's Bench, and no question is raised for us as to a reduction of damages. Therefore we are not bound to step out of our way to grant a new trial, or to direct a reduction of damages in respect of a matter upon which the Case raises no question for our consideration. I therefore pass by the matter of the pipes which are suggested to have been used.

On the 5th of April, it appears that about an hour before the commencement of the work in question, the plaintiff was leaving Brixham; he had finished what he had to do at the main sewer, in respect of which he was employed by the Local Board, and he was going away with his carts and men. He had not acted upon the suggestion of the surveyor that he should proceed with the connections, because he had no order from the board. He was willing to go on if the board would see him paid. He knew that the board had not ordered any work beyond the main sewer, and he would not go on (though willing to go on if the board were liable), because he knew the board was not liable. When he was leaving, after the completion of the main sewer, Mr. Adams the surveyor stopped him, and requested him not to go away, as there was more work to be done. The plaintiff asked who was to be responsible for the payment; answer by the surveyor that the defendant was waiting to see the plaintiff about it. Now immediately

follows the statement of the interview between Mr. Mountstephen, the plaintiff, and Mr. Lakeman, the defendant. I have mentioned that the plaintiff was about to abandon, or about to leave, or not to undertake the connections, because of the Board not being liable for them, and not having ordered them. He was going

NEW SERIES, 41.-Q.B.

away after completing the main sewer in respect of which he had the orders of the board, and within an hour after he was so going away, in consequence of an interview which took place between him and the defendant, he proceeded to begin the work which he continued to do during the rest of April and during May. Now it must be observed that it was desired by the surveyor, that the work should proceed immediately. It would follow, from the statement of the interview, that it was desired by Mr. Lakeman, the defendant, that the works should proceed immediately, and that the connections should be made at once. It was known to them all that the twenty-one days would not expire until the 10th of the same month, and that the owners of houses were not liable for work which should be commenced by the board before those twenty-one days had expired; there were five days remaining, and for those five days' work it is clear that the owners could in no sense be liable. They might make themselves liable by employing the plaintiff, but they had not employed him. It was known, therefore, to the plaintiff and to the defendant, that the owners were not liable; and there is no suggestion that the owners had desired to interfere, and they do not appear to have interfered in the matter. In respect of the board, the plaintiff was going away because he had not been employed by the board, and was not sure of the liability of the board. He did not doubt the responsibility of the board in respect of their power to pay; there was no suggestion by the plaintiff of anything of the kind. The board were treated throughout as being perfectly solvent people, and the plaintiff was as willing to work for them, if they employed him on the connections, without any surety or guarantee, as he had been to work for them in respect of the main sewer. The defendant, the chairman, does not appear to have thought that the plaintiff was afraid of the solvency of the board. It will appear presently whether he knew that the plaintiff was hesitating because he thought that he had not the security of being employed by the board, and whether what the defendant was led

L

to do was not to "Go say, on, and do the work, though the board be not liable, and whether the board become liable to you or not, and you shall be paid for that work; in other words, whether it was not, "Do the work at once, though you have no obvious or apparent paymaster at present, and for that work you shall be paid," whether by the owners coming forward, if they could be induced to come forward and give the orders; whether by the Board employing the plaintiff in a formal way, under seal if they thought proper to do so, or, if they did not think proper to do so, by their coming to a resolution to pay; or, failing all, at least by the defendant. But if, upon looking at the language the result of the conversation is, "You are not employed by anybody now, but as you are here and ready, and as it is desirable that the work should be done, do it out of hand, and somebody shall pay you," the result is, that, as nobody else pays, the defendant must pay. If, on the other hand, it turns out that all that was intended was, "You get the board to employ you, and if the board employ you, then I will become their surety, and you shall be paid if they do not pay you;" that would at once have the colour of the plaintiff being supposed to have doubted, not the liability in respect of entering into the contract, but the solvency of the board, supposing that they entered into the contract. If there

was a suggestion that the board was insolvent, it might very well be that the foundation of the contract of the defendant was a future anticipated contract of principal debt between the board and the plaintiff, who was to be employed by them. But if, as I have already shewn, all suggestion of the insolvency of the board is removed, that seems to be a highly improbable result to arrive at, and one indeed which, upon these facts, would be simply to affirm the thing that is

that view also appears to be improbable here; because the object of the parties was (and that object was carried into effect by what followed), that the plaintiff should then and there commence work under circumstances in which it was practically impossible that there should be a binding contract entered into by the board to employ him upon that work, in a way which should be binding upon the board. All the probability of the case seems, therefore, to rest upon the first supposition, "Go to work; it is work that must be done, and you are sure to be paid, and though the board are not liable to you at present you shall be paid for the work which is done." If that be the proper view (which we will discuss presently), so far from there being any notion on the part of the plaintiff that he had got the order of the board, (though I read a passage in one of the judgments in the Court below, that the plaintiff " thought he had got the order of the board,") it should seem that the plaintiff knew that he had not got the order of the board, and that he had not an original debtor in the matter at the time.

It seems also that the defendant was waiting there to induce him to go on while matters were in such a condition, that he also knew that there was not an order of the board, but that he desired the plaintiff to go on, knowing that he would not go on unless somebody was to pay him, and with an undertaking that somebody should pay for the work in the end. When you exhaust the " somebodies," you probably find that the one left with the liability is the defendant himself.

Now the statement of the interview is this: The plaintiff had an interview with the defendant, and the following conversation took place-The defendant said, "What objection have you to make the connections?' Answer, "I have none, if you or the board will order the work, or become responsible for the payment." There is no suggestion there of the plaintiff being dissatisfied with the board's solvency; it is a statement, "If you or the board will order the work." If the defendant had said at that time, "The board has ordered the work," he might become liable, according to the decision of the Exchequer Chamber in Collen