120 Wis. 336 | Wis. | 1904
The cause of action set out in tbe complaint is to recover on two promissory notes against defendant Prosser as tbe maker, and against tbe defendant 0JDon-nell upon tbe ground tbat be agreed to pay them out of tbe money due Prosser from him. Tbe defendant O'Donnell •defends upon two grounds: (1) Tbat be at no time agreed to pay bis debt to Prosser by paying these notes held by plaint
One of the issues was whether the defendant O’Donnell in purchasing the interest of Prosser’s livery business in March and September, 1893, agreed to apply the consideration ($2.,000) paid by him in discharge of Prosser’s liabilities on these notes held by plaintiff. The written memorandum of the agreement between the defendant O’Donnell and Prosser did not fully specify all the stipulations made as to what debts O’Donnell agreed to pay out of the moneys due Prosser for the sale' of the livery business and stock. It was therefore proper to receive oral testimony to ascertain what debts the defendant O’Donnell had agreed to pay. This-in no wise contradicted the written agreements between the defendants embodying a part of the transaction of the purchase of the livery property and the application of the consideration to the payment of Prosser’s debts. Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Cuddy v. Foreman, 107 Wis. 519, 83 N. W. 1103.
It is further asserted that if such was the understanding it was a promise to answer for the debt, default, or miscarriage of another, and is therefore void, because not in writing, expressing the consideration, and subscribed by the party to be charged. The effect of the transaction was that the defendant O’Donnell agreed to pay his debt to Prossery by assuming, with respondent’s assent, the payment of these notes due her. Such an agreement it is held is not in effect an undertaking in the nature of a “special promise to answer for the debt, miscarriage or default of other persons,’’ though it is collateral to the liability of the original debtor to pay the same debts. The agreement is not a mere promise to answer for another’s liability contemplated by the statutes requiring such agreements to be in writing, expressing
The action of the trial court was'proper as regards the . questions presented upon the first three grounds assigned as error.
Error is specifically assigned upon several rulings of the court in admitting testimony tending to show that O’Donnell agreed to pay the notes out of his debt to Prosser arising from the purchase of tho lively business and property, including the lots sold to him by plaintiff under the land contract. As above stated, whether such an agreement had been made was an issue, and, since the agreements relating thereto were not all reduced to writing, it was proper to receive oral testimony to show the part which defendant O’Donnell had agreed to pay. The testimony objected to came within this class, and was properly admitted by the court.
Questions put to defendant while on the stand for the evident purpose of giving him an opportunity to deny making any agreement to pay these notes were excluded by the court, and exceptions taken. It appears that the court reversed its own ruling on this question, and thus any error it committed in this respect was corrected by permitting him to state fully his denial and explanation of the transaction by which it is claimed he promised or agreed to pay these notes.
Complaint is made that appellant was prejudiced upon the frial by excluding the testimony of defendant’s attorney, Mr.
It is contended tbe court erred in refusing to submit the-special verdict requested, in tbe form tbe verdict was submitted, in tbe instructions given, and in omitting to instruct upon certain phases of tbe case. Tbe errors assigned upon these grounds relate to tbe second defense above mentioned, namely, tbat there was an accord and satisfaction of tbe cause of action alleged by tbe plaintiff. Tbe plaintiff stands before tbe court as denying tbe settlement alleged to have-been made by ber attorney, asserting tbat it was made without authority; tbat tbe payment of $15 to ber attorney was received by ber without knowledge of its terms, and upon the-representations and tbe understanding tbat it was in satisfaction and settlement of tbe claims involved in tbat action; and tbat she was not informed tbat this accord and satisfaction was claim’ed to include tbe notes in question until tbe defendant so alleged in bis answer in tbis action.
Plaintiff’s attorney bad no authority under bis retainer to bind bis client in an attempted accord and satisfaction; he-can exercise such a power only upon an express authority. Mallory v. Mariner, 15 Wis. 172; Kelly v. Wright, 65 Wis. 236, 26 N. W. 610; Mygatt v. Tarbell, 85 Wis. 457, 55 N. W. 1031. It therefore devolved upon appellant to estab-
Tbe facts established by tbe evidence were sufficiently clear to justify tbe jury in answering tbe special questions covering tbis issue in tbe negative. Nor is error shown to have been committed in framing tbe verdict or in tbe instructions given -by tbe court.
Error is assigned upon tbe ground tbat tbe court failed to give any instructions upon tbe burden óf proof as to tbe questions litigated. No specific instructions were requested either in writing or orally. “Specific error can be assigned only upon refusal to give an instruction formally requested in writing.” Hacker v. Heiney, 111 Wis. 313, 87 N. W. 249, and cases cited.
Under tbe peculiar circumstances of tbe case tbe question
The judgment should be modified, directing the application of the $75 as part payment of the amount recovered.
By the Court. — The judgment is modified by reducing the damages to $776.33, and the total to $831.48, and as so modified the judgment is affirmed; the appellant to recover costs in this court.