65 Wis. 652 | Wis. | 1886
The complaint of the respondent is for work and labor, to recover a balance of $197.58 after deducting payments. The answer, after a general denial, sets up an oral agreement under which said labor was performed, by the’terms of which the defendant sold to the plaintiff eighty acres of land at the agreed price of $400, the plaintiff to pay interest thereon, and to pay the taxes on said land, and that he should pay therefor in and by said labor, and that his wages therefor, in excess of the support of the plaintiff and his family, were to be applied upon the payment for said land. It is further averred in said answer that after the plaintiff had finished and quit-such work and labor, in September, 1881, the parties had a full settlement therefor, and the balance due the plaintiff found and liquidated at about the sum of $180, which was then, by their said agreement, applied upon and towards the purchase price of said land; that by virtue of said agreement the plaintiff went into possession of said land, cut and removed therefrom a large amount of the most valuable timber, worth the sum of $400. The prayer of the answer is that the plaintiff take nothing by his action, and for costs and disbursements. It will be observed that this answer- sets up this contract and its part performance merely in defense of the action, and there is no counterclaim for specific performance.
In the charge of the court to the jury the question of what the bargain was, was left to them to determine, and they were instructed that if they found that the contract for the land was made as claimed by the defendant at the commencement of the work, “ then the plaintiff must take his wages in that way, and he cannot go back of his contract, and claim his wages in money, until the defendant has either refused or failed, upon proper request, to pay him in the manner which was agreed upon.” The instructions to the jury appear to. have been that if the contract for the land was made at the commencement of the plaintiff’s work, then the plaintiff must take the land, and he cannot recover, unless the defendant has refxosed to deed him the land; but if the contract for the land was made at the time of the settlement, or after most part of the work had been performed, then the contract was void under the statute of frauds, and cannot be set up in defense of the action. • The instructions are not very clear on this distinction, but this appears to be their meaning, for the court says further: “ The testimony shows that the plaintiff worked for a considerable length of time for the defendant, earned considerable money from him, and that at the time when he ceased working for him there was quite a balance due him. Now, there is testimony in the case which tends to bhow that he agreed to take a particular piece of land for his balance, and to pay whatever more it required to make up the price of the land, — the value of it; and it also appears that the defendant agreed to give him this land. But this agreement was by word of mouth, and was not reduced to writing, and so it was binding upon neither of the parties, and you should and must disregard that bargain, because the law won’t enforce it. . . . This was not in writing, and for
1. The condition or proviso implied in the language “ until the defendant has either refused or failed, upon proper request, to pay him in the manner which was agreed upon,” in the instruction presenting the contract as claimed by the defendant, was clearly erroneous. If the contract in the beginning was that the plaintiff was to be paid by the purchase of the land, and he went into possession, and the balance due him was applied upon the payment of the purchase price, it would make no difference whether the defendant had refused or failed to deed him the land or not,— the plaintiff could not recover in this action for work and labor. He must bring his suit on this special contract. In such case, if the plaintiff could show that he had, fully, performed his part of such special contract, and the defendant had refused to deed him the land as agreed, he might, perhaps, recover in an action at law all the damages he had suffered by such refusal or failure to perform on the part of the defendant. But if the contract was as claimed by the defendant, and the plaintiff went into possession of the land, and cut off timber to the value of $200, and had neglected to pay the taxes, which made it necessary for the defendant to pay $100 to redeem the land from tax sale, and- had failed to pay the balance of the purchase money after deducting the amount of the balance found due the plaintiff for his work, and there was a question of the ability of the defend
2. It is just as clear that the plaintiff could not recover if the contract had been made when the settlement was made and the balance found and applied upon part payment for the land. In that case the contract, as testified to by the plaintiff himself, was not within the statute of frauds. There was the same part payment of the consider-
3. Tbe court erred, also, in sustaining tbe objection to tbe questions relating to tbe nonpayment of tbe taxes on tbe land bjr tbe plaintiff, and bis agreement to pay them, on the ground that tbe contract was void. Tbe error consisted in tbe reason given for tbe ruling, and was not because tbe evidence bad any particular pertinency to tbe case; for the amount paid by tbe defendant to redeem tbe land, as well as tbe value of tbe timber taken off by tbe plaintiff, could not be adjusted in such an action. It was sufficient to
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.