Badger v. Daenieke

56 Wis. 678 | Wis. | 1883

LyoN, J.

1. It does not seem to be disputed that tbe amount of both accounts is $230.48, and tbe defendant does not claim that be bas paid tbereon above $200. Neither is it disputed that all of tbe materials furnished were used in tbe construction of tbe building mentioned in tbe petitions for liens and in tbe complaint. Tbe bill of tbe plaintiff Gould was $196.58, on wbicb payments were credited amounting to $175. Tbe bill 'of tbe plaintiffs, constituting the firm of Badger & Gould, was $33.90, on which was credited a payment of $25. Tbe defendant claimed that tbis item of $25 should have been applied on tbe bill of Gould, wbicb would have paid it imfull and a little more, and that because be purchased air the materials be bad of Gould alone, the plaintiff’s firm could enforce no claim against him for tbe price of any of tbe materials. It is undisputed that the plaintiffs owned the materials charged to tbe defendant in their account. That being so, they may maintain an action for the price thereof. Gould was in fact the agent of tbe firm in making tbe sale. It is quite immaterial that tbe defendant supposed be was dealing with Gould alone, and did not know that tbe firm owned any part of tbe materials wbicb be purchased. In a case like tbis a principal may avail himself of a contract made by an agent in bis own name, but really for tbe principal, although tbe party with whom tbe agent contracts was unaware of tbe agency. Stowell v. Eldred, 39 Wis., 614.

Tbe defendant supposed that all of the materials purchased by him constituted a single account, and that be was indebted to Gould alone for the unpaid balance thereof. The effect of Gould's assignment of his account to the firm was to make such balance payable to the plaintiffs, instead of Gould alone. This being so, it seems quite immaterial whether payments be applied to one account or the other, as the application will not affect the aggregate balance due on both accounts. Hence, were it found that the $25 credited on plaintiffs’ account should be applied on the other account, the fact would still remain that there is an unpaid balance on both accounts due the plaintiffs, equal to the sum which the plaintiffs have recovered. This alleged misapplication of the payment of $25 (if it has been misapplied) is not, therefore, a sufficient cause for a reversal of the judgment.

2. It is claimed that the finding that all the allegations of the complaint are true is insufficient. We think otherwise. Such a finding is but an application of the maxim, “ cerium est quod ceri/um reddipotest? It is impossible that any party to an action can be prejudiced by the use of this form of finding. It is a form in common use, and its sufficiency has always been recognized by this court. See Demming v. Weston, 15 Wis., 236; Catlin v. Henton, 9 Wis., 476; Downer v. Sexton, 17 Wis., 29.

3. The plaintiffs' are entitled to recover full costs by virtue of the statute. Weston v. Olsen, 55 Wis., 613.

By the Gourt.— The judgment of the county court is affirmed.