3 Pin. 308 | Wis. | 1851
This was an action of assumpsit commenced before a justice of the peace in Washington county, for the recovery of $80, the price of a yoke of oxen, by the defendant in error against the plaintiff in error. The pleadings before the justice are as follows, to wit: The plaintiff declares for the pay of one pair of oxen the amount of eighty dollars, which amount was now due him from defendant for said oxen. The defendant pleaded for a nonsuit on the ground that he did not owe plaintiff, and under the statute, not liable for that amount. Also pleaded that it was a special promise to answer for a debt of another person, and not in writing. The justice rendered judgment in favor of the defendant in error, the plaintiff below, for the sum of eighty dollars and costs of suit. The plaintiff in error appealed from that judgment to the county court of Washington county. Upon the hearing of the cause in said county court, judgment was rendered for eighty dollars and costs of suit, taxed at $41.60, in favor of the defendant
The errors relied on by the plaintiff in error for the reversal of the judgment of the county court are:
1. Because the agreement by Hall, plaintiff in error, was a special promise to answer for the debt of another, and hence void by the statute of frauds.
2. The agreement by Hall, if good to bind him, was a special and conditional one, and therefore should have been declared on specially. And the testimony is insufficient to sustain the common count in assumpsit for goods sold.
3. The testimony of Conrad Bullard should have been rejected, as he was interested to fix the liability of plaintiff in error.
4. The proof is that Hall was not to pay for the cattle until the completion of a bridge, and the bridge was not completed at the time of the trial of this suit in the court below.
5. The testimony shows a variance between the declaration and contract sought to be recovered upon.
Now, the test of the first point is to whom was the original credit given. If it was given to Bullard, then the position was well taken ; but if it was given to Hall, the case does not come, within the statute of frauds. It is clear from all the evidence reported to this court that when Wood sold the oxen, he would not take Bullard for the payment, and would only let them go on condition that Hall would pay for them. There is no conflicting evidence or testimony upon this point in the case. Wood evidently never intended to look to Bullard for payment, but always held Hall as the only one responsible to him. Hall himself acted upon this impression.
We cannot see by what mode of reasoning a conclusion can be arrived at that this conti’act is within the statute of frauds. It was clearly an original contract and valid. This is the main point in the case. We consider the declaration clearly sustained by the evidence in the case. The 2d, 3d, 4th and 5th
We see no error in the judgment of the court below, and are are of opinion that the same be affirmed, with costs.
Judgment affirmed.
