66 Wis. 1 | Wis. | 1886
This case has been in this court twice before (49 Wis. 57; 60 Wis. 12),. and the facts appear in the former appeals, and no material difference in the evidence appears to have been made on the three trials. The same exceptions to the admission of evidence to prove the statements of Celluyham, the alleged agent of the company, in respect to the contract he had made with the plaintiff for the 1,600 .yards of stone, and his authority to make it, were assigned on the first appeal, but not noticed, or were disregarded in
As to the testimony of other witnesses of Celluyham’s statements, the error, if any, was cured by the subsequent testimony of Oelluyham himself- that he did not make them, thus converting the testimony into the contradiction of Celluyham’s evidence, and making it competent, except in order of time, which was in the discretion of the court. This precise point was so decided by this court in Rounsavell v. Pease, 45 Wis. 506. But, aside from any such technical rule, the evidence seems to me to have been proper as showing the conduct of' Celluyham generally, and the circumstances connected with it in respect to the subject matter of the contract, with a view of showing his apparent general authority to purchase stone of the plaintiff for the company’s works. If he had such an apparent general authority or agency, then, by the authorities cited by the learned counsel of the appellant, such statements were within such authority, and would bind the company. It is not contended that such statements would not bind the company if made by a general agent; but that, Celluyham’s agency being special and limited in respect to the purchase of stone, his statements showing that he was a general
The finding last above quoted was excepted to for not being sustained by the evidence. We think this fifth finding is amply sustained by the evidence. Celluyham was the foreman and boss mechanic in charge of the stone and mason work of the company in that part of the state, and must be presumed to have known as well as, if not better than, any one else the kind and quantity of stone required for any particular work. lie was the man in authority, generally present, and accessible to those furnishing materials. He had authority to employ and discharge men on his works and fix their compensation. He had before bought rubble-stone for the works, and they had been paid for by the company, and he had direct authority to purchase 400 yards of stone of the plaintiff, and did so without
The additional point is made in the able brief of Mr. Lamb on behalf of the company that the contract was divisible, and that for the 1,200 yards of stone was void under the statute, because no stone was delivered under and no payment made upon it. If the contract for the 400 yards of stone was separate and independent from that for the 1,200 yards, the learned counsel certainly sustained his position both by reason and authority. The confusion from which any doctrine of the divisibility of contracts is made to apply to this case has evidently arisen from the former verdict and the peculiar findings of the jury on the last trial, and from the careless and inapt use of the term divisibility. The fifth finding only concerns the contract for the additional 1,200 yards; the 400 yards being out of the question as' having been directly authorized. The question on
The general verdict, finally, was for the plaintiff, $12» on the basis of fifty cents profit on each yard not delivered of the 1,600 yards, and yards delivered and not paid for, at four dollars per yard. This effectually destroys the divisibility of the contract.
By the Court.— The judgment of the circuit court is affirmed.
When this ease was before us on the second appeal therein (60 Wis. 12), Mr. Justice Taylob and I were
The case now comes here again on substantially the same evidence. Although we dissented from the former judgment, it is binding upon the court and parties. The rulings of the circuit court were in strict accordance with its requirements. It seems inevitable that the judgment of that court must be affirmed. ~We concur in the affirmance thereof, because the former judgment is res adjudicata upon the questions presented upon this appeal.