Green v. Hadfield

89 Wis. 138 | Wis. | 1894

WiNslow, J.

The several contentions made by the defendant will be taken up in their order.

1. The objection that tbe verdict is contrary to the evidence is untenable. Examination of tbe record discloses sufficient evidence to sustain all of tbe findings of the special verdict.

2. It is next objected that tbe alleged promise of tbe defendant was a promise to pay tbe debt of a third person, and hence void because not in writing. Tbe facts established by tbe verdict or by uncontradicted evidence, which bear upon this question, are briefly as follows: Tbe plaintiffs bad a bill of sale of a part of tbe personal property in question, given by C. IT. Hadfield to them January 13,1892, ■which was in fact given as security for present and future indebtedness, which bill of sale had never been filed. On the 30th day of January, 1892, the plaintiffs met O. H. and Joseph Hadfield at a law office in Milwaukee. At this meeting, after lengthy negotiation, an agreement was reached by which 0. H. Hadfield, with the consent of the plaintiffs, transferred all, or nearly all, of his property, including that icovered by the unrecorded bill of sale, to Joseph, and the plaintiffs surrendered to bim their bill of sale; and in consideration of the transfer and release Joseph orally promised to pay the debt to the plaintiffs, and immediately took possession of the property and business. This statement of facts renders it quite clear that Joseph!s promise, although in form a promise to pay the debt of another, was in fact a promise to pay his own debt in a particular way. Johannes v. Phenix Ins. Co. 66 Wis. 50. There was not only a consideration for this promise moving from 0. H. Hadfield to the defendant, but also a consideration moving directly from the plaintiffs to the defendant, consisting of the surrender of the bill of sale. It is said that this bill of sale was void, 'except as between the parties, because it was in substance •a chattel mortgage and had not been filed. It was not, however, entirely valueless to the plaintiffs, and its release was clearly a benefit to the defendant. It was capable of

immediate filing prior to tbe close of the negotiations between the parties, and, moreover, the parties evidently treated it as a valid lien. Weisel v. Spence, 59 Wis. 301; Young v. French, 35 Wis. 111; Hewett v. Currier, 63 Wis. 387.

3. Upon the trial the defendant offered to prove certain-conversations which took place between himself and C. IL. Hadfield three weeks prior to the meeting of the parties at Milwaukee, as tending to prove what the terms of the contract-actually were. This testimony ■was excluded, and undoubtedly correctly excluded. The contract sued on is a tripartite contract made at the meeting of the three parties.. Upon familiar principles, its terms could not be affected, as-to one of the parties, by conversations between the other-two in his absence.

4. The contention that the transaction between the parties was void because it amounted to a voluntary assignment for the benefit of creditors is palpably untenable.. Even if the contention were correct, it would only be void . as to creditors who attacked it, and this the plaintiffs have not done. By this very action they directly affirm it.

A point is made that the trial judge incorrectly stated to the jury that the defendant handed the plaintiffs’ bill of sale to an attorney who was present, when the defendant’s evidence was that the attorney took it out of his hand. Examination of the context shows that the difference between the two statements is trivial and could not mislead the jury.

By the Court.— Judgment affirmed.