The Board of Comm'rs of Gibson Co. v. The Cincinnati Steam Heating Co. to pay another's debt, nor was it to pay for property delivered to another, or for services rendered for another; on the contrary, the promisor was the sole beneficiary, and it was seeking to obtain value for itself and no one else. It seems clear that justice requires that the county should pay what it promised, for its promise was for its own benefit, and all of value that the promise secured accrued directly and completely to it as the owner of the property. The principle which the well-reasoned cases establish is this: Where the owner of property undertakes to pay for work and materials to be subsequently done and furnished by a sub-contractor in order to secure the completion of a building in a case where the principal contractor has failed to carry on the work, the promise is an original one, and not within the statute of frauds. This principle is intrinsically just, and its enforcement does not in the slightest degree tend to the mischief the statute of frauds and perjuries was intended to repress. In the well-reasoned case of Emerson v. Slater, 22 How. 28, the Supreme Court of the United States gave the subject full consideration, and held that a promise similar to that made by the appellant was enforceable. It was there said: "But whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself, or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability." It is possible that the language quoted states the doctrine rather too broadly, but we shall not inquire whether it does so or not, for here we are not required to decide what the rule is where the promise relates to the past, inasmuch as we are concerned only with what related to the future at the time the new promise was made. This is so because the only question in this case is whether the appellee is entitled to The Board of Comm'rs of Gibson Co. v. The Cincinnati Steam Heating Co.. recover for work done and materials furnished after the new contract was made. If the claim asserted was to the sum owing before the new promise was made, there would, perhaps, be more difficulty in solving the legal problem, but the sum due when the new promise was made was paid, so that the controversy concerns only the right to recover the sum that subsequently became due for work done and materials furnished. We do not decide, we may say, by the way, that the sum due might not be recovered under the new promise had it not been paid; we simply decide the question before us, and that relates to matters that at the time the new promise was made concerned the future, and not the past. The promises were in their nature severable, and the valid promise may certainly be enforced. Lowman v. Sheets, 124 Ind. 416. Resuming our consideration of the decided cases bearing directly upon the questions before us, we take up that of Sext v. Geise, 80 Ga. 698, where an owner promised to pay for materials furnished to complete a building then in progress of construction, and where it was said: "If the supply of lumber was about to stop and the owner of the building procured its continuance by promising to pay for it, his undertaking was not collateral but original, and he is bound." Another case is that of Kutzmeyer v. Ennis, 27 N. J. L. 371, where the court said, speaking of the owner of a building: "He was interested in the completion of the work. He received the benefit of it, and he had it in his power to indemnify himself for the advance to Ennis by withholding the money from the contractors." In discussing a question which arose in a case very similar to the present, the Supreme Court of Vermont said: "If in this case a third person make an entire, substantive and independent contract with him to perform the same service this may be enforced though not in writing, as it is not collateral." But without quoting from the decisions, or commenting upon them, we cite some of them and affirm that our conclusion The Board of Comm'rs of Gibson Co. v. The Cincinnati Steam Heating Co. that the appellant's contract is original and not collateral, is sustained by the overwhelming weight of authority. Yeoman v. Mueller, 33 Mo. App. 343; Crawford v. Edison, 45 Ohio St. 239; Clifford v. Luhring, 69 Ill. 401; Bayles v. Wallace, 56 Hun, 428; Hagadorn v. Stronach, etc., Co., 81 Mich. 56; Galveston, etc., Co. v. Hourein (Texas), 9 S. W. R. 661; Greenough v. Eicholtz, 1 Mon. (Pa.), 433; Fitzgerald v. Morrissey, 14 Neb. 198; Young v. French, 35 Wis. 111. Of the cases cited by the appellant the only ones in point are Ellison v. Jackson, etc., Co., 12 Cal. 542; Noyes v. Humphreys, 11 Gratt. 636; Ware v. Stephenson, 10.Leigh, 155. The Virginia cases are out of line with authority, and so is the California case. The latter cites as authority a single case, that of Puckett v. Bates, 4 Ala. 390, and that case is in conflict with the later and better considered case of Jolley v. Walker, 26 Ala. 690. Our own cases very clearly recognize the distinction between original and collateral contracts. The earlier cases are collected in Anderson v. Spence, 72 Ind. 315, and it was shown that the case of Green v. Cresswell, 10 A. & E. 453, which asserted a doctrine contrary to that here declared, had been overruled in England and denied in America. In Palmer v. Blain, 55 Ind. 11, it was held that a promise by a third person to an execution creditor that if the creditor would satisfy the execution he would pay the judgment, was not within the statute. A very similar decision was made in Frash v. Polk, 67 Ind. 55. In Aughie v. Landis, 95 Ind. 419, it was held that a promise by a defendant to pay for work which the plaintiff agreed to do for a third person was not within the statutory inhibition. The case of Shaffer v. Ryan, 84 Ind. 140, illustrates the difference between an original promise and a collateral one, as does, also, the case of Hackleman v. Miller, 4 Blackf. 322. The case before us is not dependent upon the doctrine of novation, so that the cases of Langford v. Freeman, 60 Ind. 46, Krutz v. Stewart, 54 Ind. 178, Crosby v. Jeroloman, 37 Indiana Insurance Company v. Hoffman. Ind. 264, and Ellison v. Wisehart, 29 Ind. 32, are not of controlling influence. It is not dependent upon that doctrine, for the manifest reason that what was done after the new promise was made was done for the promisor, for its benefit and at its request, and it is only for the value of what was so done that the appellee sues. As to the value of the work and materials furnished under the new promise the contract was one between the appellee and the appellant, and it did not concern any debt due from Miller to the former. Judgment affirmed. Filed May 14, 1891. No. 15,195. INDIANA INSURANCE COMPANY v. HOFFMAN. INSURANCE --Loss by Fire.--Policy Construed.-Pro Rata Liability.--The plaintiff held a policy in the defendant company for $1,500. The policy was on twenty-one items of property which were classified in the policy, and opposite each item a valuation was affixed, making, in the aggregate, $90,000. The policy provided that the company only insured onesixtieth part of each of said sums, and that its liability was limited to such a proportion of the loss as the amount insured thereby bore to the entire amount of insurance. At the time of the fire the aggregate insurance on the property was $60,000, and the loss $51,000. Held, that under the terms of the policy the defendant company was liable for one-fortieth, and not sixtieth, of the loss. From the Marion Superior Court. V. Carter, for appellant. N. Morris, L. Newberger and J. B. Curtis, for appellee. MILLER, J.-This was an action brought by the appellee against the appellant on a policy of insurance. The complaint alleges an insurance by the appellee of $1,500; that there was a total insurance of $60,000, and a loss of $51, Indiana Insurance Company v. Hoffman. 000, and claims that appellant's pro rata share of the loss was the one-fortieth, or $1,275. The only question presented by the record is as to the sufficiency of the third paragraph of answer. This paragraph admits its liability for $850, but claims that by the terms of the policy it was agreed that the plaintiff should carry and maintain the full sum of $90,000 insurance on his property, and that it was to recover under the policy sued on one-sixtiethh part of $90,000 insurance; that the plaintiff, pursuant to the provisions and agreements in the policy, procured concurrent insurance amounting, with the one in suit, to $90,000; that afterwards, and before the fire, the plaintiff, without the knowledge and consent of the defendant, cancelled $30,000 of the insurance, so that at the time of the fire, there was only $60,000; and that by reason of the reduction, the plaintiff became an insurer with the defendant for $30,000. The answer admits that the loss was $51,000, and that at the time of the fire the total insurance was $60,000. The appellant contends that its liability is fixed by the terms of the policy at the one-sixtieth of the loss, or $850, and the appellee that its liability is for such proportions of the total loss, $51,000, as the sum of $1,500 bears to the whole amount of insurance existing at the time of the fire, being the one-fortieth, or $1,275. In that portion of the policy which is usually written out, there is attached a printed slip locating and describing the property insured as follows: "On stone building marked 'A' on plan, including stone addition and stone stairway, house, $10,000. "On stone building marked 'B' on plan, including stone stairway, house, $5,000." Following these are nineteen other similar items of property, with corresponding amounts indicated on the right, and at the bottom the figures $90,000 as the amount pro 1 |