63 Wis. 386 | Wis. | 1885
The facts are substantially as follows: Long before the 28th day of June, 1881, the defendant bought the land and commenced improving it, and in the last of May or first of June he commenced building a dwelling-
The building was completed, and, according to the testimony of the defendant, Calway had been fully paid, and Calway was pecuniarily irresponsible. In the fall of that year, one Chubb, who was the managing clerk of the plaintiff, was directed by the plaintiff to file a lien on the building for the balance of the bill. Chubb, before doing so, called on the defendant, and told him that he had been instructed to file a lien on the building for the plaintiff, and before doing so he thought he would speak to him about it; whereupon the defendant made the reply that if they would wait until after he got through with the trial of a suit then pending with Calway, he would pay the claim. After that suit was through with, Chubb called on the defendant
These facts about the promise are supported by the testimony of Chubb and denied by the defendant. No lien was ever filed or prosecuted by the plaintiff on the building.’ Special findings were submitted to the jury, and were answered as follows: “ 1. Did the witness Calway have authority from the defendant to purchase the lumber mentioned in the complaint from the plaintiff on the credit of the defendant? Answer. No. 2. Did the defendant promise the plaintiff’s agent, Chubb, that he would pay the plaintiff for the lumber if the plaintiff would forbear to commence proceedings to enforce a mechanic’s lien against the building on which the lumber had been used? A. Yes. 3. Did the defendant promise the plaintiff’s agent, Chubb, that he would pay the plaintiff for the lumber without reference to whether the plaintiff should forbear to commence proceedings to enforce a mechanic’s lien? A. No.” The jury also found a general verdict for the plaintiff for $61.10.
There were two preliminary questions: (1) Whether the circuit court obtained jurisdiction'on the appeal; and (2) whether the case was one for an original trial in the circuit court. It appears, from the return of the justice, that on the return day of the summons the case was called, and E. J. MacBride appeared for the plaintiff and filed a written complaint, and James O’Neill appeared for the defendant, and that, after waiting one hour, and the plaintiff not appearing iind offering any proof to sustain the complaint, the justice rendered judgment against the plaintiff for the costs of the action, amounting to the sum of $2.04. Affidavits were presented to show that neither the plaintiff in person, nor Mr. MacBride for him, appeared as stated in the return of the justice, but that Mr. MacBride met the justice
It is contended by the learned counsel of-the appellant that an appeal will not lie from such a judgment dismissing the complaint for want of prosecution. The record does not show the reason why the plaintiff did not appear within the hour to offer his proofs, so that it cannot be said that this judgment is equivalent to a voluntary nonsuit or discontinuance. We know of no reason and have been cited to no authority why the plaintiff may not appeal from a judgment so rendered. The language of the statute (sec. 3753, R. S.) is that “ any party to a final judgment rendered by a justice of the peace . . . may appeal therefrom to the circuit court,” etc. There is no exception in the statute, and we can make none. This is clearly a final judgment against the plaintiff in the action, and therefore appealable.
The plaintiff, at the time of the appeal, made an affidavit that he had a valid claim against the defendant, as set forth in his complaint, exceeding the sum of $15, according to subd. 2, sec. 3768, R. S., so as to give him the right to a trial de novo in the circuit court. The learned counsel of the appellant objected to such a trial, and demanded that the cause be heard on the record, on the ground that when such affidavit was made no complaint had been filed, which the statute clearly implies. Rut this point is already disposed of by the record return of the justice, that the plaintiff, at the proper hour on the return day, appeared and filed his complaint, and such complaint constituted a part of the record returned to the circuit court. This is conclusive that there was a complaint filed.
The only exception to evidence offered by the plaintiff,
Tbe complaint alleged (1) that tbe defendant bought tbe lumber, and Avas therefore liable to pay for it; and (2) that be promised to pay the. plaintiff’s demand if be would forbear tbe fifing of a mechanic’s lien on tbe building for it. Tbe first cause of action was virtually negatived by tbe jury, and tbe second was sustained. Tbe judgment must therefore stand, if at all, on tbe second finding. It is contended by tbe learned counsel of tbe appellant that tbis finding is not sustained by tbe evidence. Without reviewing tbe evidence on that point further than tbe above statement of it, we are satisfied that tbe testimony of tbe Avitness Chubb as to that promise of tbe defendant fully sustains
This condition of things .raises the following important question: Was such promise of the defendant to the plaintiff, made under such circumstances, supported by a sufficient consideration ? It was not at that time ascertained whether the defendant owed Calway anything or not, for he had a suit pending with him concerning it; and it had not then been ascertained whether he was not personally
The contention of the learned counsel of the appellant is that, if the plaintiff had no valid hen upon the building, there was no consideration for the promise to pay the claim; and this contention is enforced with great abihty and much plausibility. But I am unable to see that this precise question is not decided in Young v. French, 35 Wis. 111, and that this case is not ruled by that. In that case it was assumed that it was a benefit and advantage to the promisor to have the lien forborne and not enforced upon the logs in his possession, and such was consideration enough to support the promise. So, here, the filing of this mechanic’s lien upon the building as an incumbrance, and its attempted enforcement in court, involving him in the expense and trouble of at least a doubtful litigation, would have damaged the defendant and caused him to suffer pecuniary loss. To avoid'these consequences was certainly of great benefit and advantage to him. It was claimed in that case that the promisee had no valid lien to forbear, but the present chief justice. said in his opinion: “ But it is unimportant whether the plaintiff in fact had a valid lien or not. The defendant treated with him on the assumption that he had
In Griswold v. Wright, 61 Wis. 195, it is said, by Mr. Justice Cassoday: “The compromise of a doubtful claim is a good consideration of a promise to pay money, and it is no answer to an action brought upon such promise, to show that the claim was invalid; ” and the following cases are cited by him to sustain this doctrine: Crans v. Hunter, 28 N. Y. 389; McKinley v. Watkins, 13 Ill. 140; Draper v. Owsley, 51 Am. Dec. 218. The same principle is sanctioned in respect to the compromise of doubtful claims and a promise to pay, in Kercheval v. Doty, 31 Wis. 476. In Cook v. Wright, 1 Best & S. 559; S. C. 30 Law J. Q. B. 321, work had been done in paving streets, and the expense charged
That such a promise is not within the statute of frauds has been held by tMs court in Weisel v. Spence, 59 Wis. 301, and in many other cases, and is well established by authority elsewhere. See on tMs question; as well as on the above question also, Cowenhoven v. Howell, 36 N. J. Law, 323; Train v. Gold, 5 Pick. 380; Hubbard v. Coolidge, 1 Met. 84; Alger v. Scoville, 1 Gray, 391; Walker v. Penniman, 8 Gray, 233; Wood v. Corcoran, 1 Allen, 405; Wills v. Brown, 118 Mass. 137; Hoppock v. Wicker, 4 Biss. 469, affirmed in 6 Wall. 94; Townsley v. Sumrall, 2 Pet. 170.
The cases cited by the learned counsel of the appellant are very different in their facts, and not applicable. The plaintiff asserted his claim against the defendant in perfect good faith-; 'and, relying on his promise to pay it, forebore filing' and prosecuting his lien on the buildin which he
I have treated the various questions raised more at length on account of the ability and zeal of the able counsel on the argument, and I have availed myself of the authorities cited in the briefs in m'ost part. The case is an interesting one and the principles important, although the amount in controversy is small.
By the Court.— The judgment of the circuit court is affirmed.