Riley v. Kahan

Citations

• 68 Pa. Super. 415
• 1917 Pa. Super. LEXIS 138

Syllabus

<p>Principal and surely — Building maternal — Act of April 26,1855, P. L. 808.</p> <p>While no rule can be easily expressed by which to determine in all cases whether a promise to be responsible for the debt or liability of another is or is not within the statute it is a general rule that when the leading object of the promise is to become guarantor or surety for a debt for which a third party is and continues to be primarily liable, the agreement, whether made before or after or at the time of the promise of the principal, is within the statute and of no effect unless in writing.</p> <p>Where a liability is to be incurred on the strength of an oral promise, and it does not appear from all the facts entering into the transaction that it was the intention of the promisor to create an original undertaking by him, he cannot be made liable by reason of the statute on such promise.</p> <p>An owner in a building contract deposited a sum of money with a stakeholder under an agreement by which the money was to be paid to the contractor upon a written statement of the owner that the work was duly completed. A materialman asked the owner whether he would be responsible for material furnished to the contractor. The owner told him of the deposit and said that if he would get a written order from the contractor on the stakeholder, that he, the owner, would see that the materialman would get his money. The order was secured and the material furnished, and charged to the contractor alone. A partial payment was made by the stakeholder-to the materialman. Held, (1) that the promise of the owner wa's an oral one within the Act of April 26, 1855, and (2) that the owner was not liable to the materialman either by reason of the partial payment, or by reason of any act of the stakeholder.</p>