67 Wis. 296 | Wis. | 1886
The testimony given upon the trial is not all preserved in the record. In fact, it is conceded that only a very small portion of it is so preserved; and that only so far as it covered certain points involved in the motion to set aside the verdict and for a new trial. The questions here presented arise upon the pleadings and the facts as found by the special verdict.
1. It is said there is a defect of parties plaintiff, in the -omission of Cummings Merrill, who was a partner of the plaintiffs in making the contract upon which the action is ■brought, and continued to be such for nearly a year after, when he withdrew from the firm and assigned and transferred all his interest therein, including the contract, to the
Here the defendants, in July, 1881, without raising any such objection, answered upon the merits. It is admitted that a trial upon the issue so formed Avas had in the fall of 1881, which resulted in a verdict and judgment in favor of the plaintiffs, which were set aside and a new trial granted, November 21, 1881. By such answer and trial the defendants Avaived all objection to the complaint on the ground of defective parties plaintiff, under the authoi’ities cited. Some tAvo months aftenvards the defendants put in a new ansAver, embodying a demurrer for defects of parties plaintiff, as above indicated. To make this available upon the
With certain exceptions not material here, “ every action must be prosecuted in the name of the real party in interest.” Sec. 2605, R. S. Cummings Merrill had no interest whatever in the cause of action alleged in the complaint. That the interest which he previously had was assignable, under our statutes, cannot be questioned. Foster did not contract for Cummings Merrill’s personal skill, service, or supervision, and hence, the authorities cited by the learned counsel for the defendants are inapplicable. Besides, there is no question of rescission of the contract by reason of his withdrawal from the firm. On the contrary, the defendants, with knowledge of such withdrawal, went on and furnished a portion, of the logs under the contract. Of course, Cummings Merrill was, not, by such withdrawal, released from any liability to the defendants by reason of any breach of the contract as to any matter set uj> in any of the counterclaims. The defendants had their remedy by independent action against him and the plaintiffs jointly for the several breaches of contract alleged in the counterclaims; and in the same action could have proceeded in rem against the property sold by Foster to the firm, as was sought to be
2. It is said that the complaint states no cause of action against the defendant Richardson; and that is alleged as a defect of parties defendant by way of demurrer embodied in the last answer. An excess of defendants is not a defect of parties defendant. If the complaint stated no cause of action against Richardson, he should have separately demurred on that ground. But the complaint clearly did state a good cause of action against him. By his contract with Foster he agreed to assume all obligations to which Foster was held by virtue of the contract with the firm, and was to enforce the obligation therein assumed by the firm, and was entitled to collect of them the amount due on that contract, which claim was thereby transferred to him. By that agreement he became a party to the contract with the firm, and could hold the firm responsible for any breach of that contract. It is equally certain that the firm, and the plaintiffs as the assignees of Cummings Merrill, could hold him responsible for any breach of any of the obligations he thus assumed. Putney v. Farnham, 27 Wis. 187; McDowell v. Laev, 35 Wis. 371; Palmeter v. Carey, 63 Wis. 426; Johannes v. Phœnix Ins. Co. 66 Wis. 57, and cases there cited.
3. It is said, in effect, that the special verdict is insufficient to support the judgment, because it is not specifically found that the plaintiffs had, during- the time in question,
It is true that the findings; disconnected from the evidence given upon the trial, may seem to be somewhat inconsistent, and leave it in doubt whether the plaintiffs did not impose conditions upon their sawing the logs not authorized by the contract. Rut the bill of exceptions contains the opinion of the trial judge on the motion for judgment, in which the matter is made clear. He said: “ The defendants claim the contract is not binding on them for want of mutuality; that, whereas Foster agreed to deliver for sawing all the timber on the land which was profitable to cut, the plaintiffs did not agree to saw it all. By the contract, Foster ‘agrees to furnish logs, in yearly instal-ments to conform to the requirements of his trade, until all his timber is cut, or as nearly as it shall be profitable to cut.’ ‘ The time limited for the cutting of said timber is four years.’ ‘ It is distinctly understood that all logs put in any winter shall be sawed out the season following.’ No
Since the evidence is not all before us, this statement of the facts by the trial judge must be regarded as a verity in the case. Buechel v. Buechel, 65 Wis. 536; Hoey v. Pierron, ante, p. 262.
4. It is said that the damages^ allowed in the judgment are, in any event, $300 too large. This claim is based solely upon the theory that the defendants were entitled to ten per cent, interest for four years on the $1,500 to be paid for the machinery. The court held that, as the machinery -was to be paid for in sawing logs which the defendants failed to furnish, the price of it was not available to the defendants as a counterclaim, but was an element to be considered in estimating the plaintiffs’ damages. The learned j udge said: “ For, if the contract had been performed on both sides, the
5. Exception is taken to the order of the trial judge on appeal from the clerk from the taxation of costs. The disbursements allowed on such appeal seem to have been stated in detail and verified by affidavit filed with the clerk, as ro-
By the Gourt.— The judgment of the circuit court is affirmed.