10 Wis. 422 | Wis. | 1860
By the Court,
It appears to us that the judgment in this case must .be affirmed. It is insisted that the action cannot be maintained, because it is said that the promise of the plaintiffs in error was a collateral undertaking to answer for the debt of Gilson, and not being in writing, is void, by the statute of frauds-. But there certainly is considerable testimony in the case going to. support the allegations of the complaint, in respect to this promise; and we have no doubt but that the complaint sets forth a good cause of action. The complaint alleges, in substance, that Gilson was indebted to to the defendant in error in a specified amount; that while this indebtedness existed and continued, the plaintiffs in error became indebted to Gilson for lumber arid logs sold them by Gilson j that an arrangemennt was entered into between the
It is further contended, on the part of the plaintiffs in error, that the evidence did not show that the defendants below were indebted to Gilson, in any sum whatever, at the time of the promise, for the reason that the sale of the logs by Gilson to them was void by the statute, as the price of the property exceeded fifty dollars, and there was no written memorandum of the sale. And the circuit court was requested to charge the jury that if they should find the value of the logs, at the price agreed upon, sold by Gilson to the defendants, to be over fifty dollars, and that none of them were delivered to the defendants until after they made the promise to the plaintiff to pay Gilson’s debt, that then the plaintiff could not recover. The court refused to give this instruction, and, as we think, properly, under the evidence. The instruction goes upon the theory that the sale of the logs was void, there being no memorandum thereof in writing, and no delivery of the property. But we think there was here something equivalent to the payment of the part of the consideration money, if the understanding of the parties was that the defendents, by paying to Stevens Gilson’s debt, discharged that debt, and at the
We do not discover any other question in the case material or necessary to be noticed. The other instructions which were refused, we do not think were correct, as asked to be given.
It follows that the judgment of the circuit court must be affirmed.