61 Wis. 195 | Wis. | 1884
There is no claim that the notice alleged to have been given by the plaintiff as subcontractor was not sufficient to perfect his lien as such subcontractor under sec. 3315, íl. S. The notice being sufficient and given in time
The discontinuance of an action brought in good faith upon a doubtful claim has always been held to be a good consideration for a promise to pay the amount of the claim. So a compromise of a doubtful claim is a good consideration for a promise to pay money, and it is no answer to an action brought upon such promise to show that the claim was invalid. Crans v. Hunter, 28 N. Y. 889; McKinley v. Watkins, 13 Ill. 140; Draper v. Owsley, 57 Am. Dec. 218. Here the claim was not doubtful. The defendant’s promise to pay was an implied confession that she was then indebted to Hire in at least the amount she then promised to pay to the plaintiff. This being so, her block was then charged with the payment of the plaintiff’s claim. The subsisting obligation of the defendant to pay the claim or have it enforced out of her block was a sufficient consideration to support the promise of payment. Cook v. Bradley, 7 Conn. 57; Burr v. Wilcox, 13 Allen, 269.
In Rippey v. Friede, 26 Mo. 523, it was held that the forbearance of a subcontractor to take the necessary steps to enforce his lien under the mechanic’s lien law of that state was a good consideration for the promise of the owner of the building to pay the claim. The case is even stronger than this, for there the question whether the defendant made the promise was disputed, while here it is confessed
It is urged that if the defendant made such oral promise, then it was within subd. 2, sec. 2301, R. S., and hence void. But the assumption that the promise was oral, and not in writing, is wholly unwarranted by anything contained in the record. A promise and agreement being alleged, we are bound to assume that they were valid rather than invalid, even if such oral promise would be within the statute. But we are by no means prepared to say that such oral promise would' have been within the statute. In fact, the decision in Weisel v. Spence, 59 Wis. 301, seems to hold that it would not. -In fact, this case is stronger, because it is alleged, not only that the lien was released, but that the original debtor was discharged, while in that case the original debtor was not released.
The matter of costs was in the discretion of the trial court, and we have no disposition to disturb the order by reason of the ruling made.
By the Court. — The order of the circuit court is affirmed.