124 Wis. 509 | Wis. | 1905
The following opinion was filed January 31, 1905:
The jury having returned a verdict for plaintiff, judgment for defendant can be justified only if the evidence conclusively establishes that the defendant’s promise was to answer for the debt or default of another, which, by subd. 2, sec. 2307, Stats. 1898, is void if not in writing. This provision comes to us from the original statute of
The parties here negotiated and finally agreed upon a sale from plaintiff and his company to defendant of certain standing timber which the latter desired transformed into saw logs with all possible expedition. It was important that sucb transformation progress during the period of negotiation., examination of title, and arrangement of details. To that end it was necessary that some one make advances. When transfer was finally made at the prices fixed for standing timber, that timber had been advanced toward its next stage of saw logs to the extent of the logging work done in the interim, and was enhanced in value to an amount presumptively in excess of the advances made by plaintiff, and those advances were available as a credit upon the contract price for cutting and hauling the logs, which defendant had agreed to assume. Hence, upon final conveyance by plaintiff and. his company, they transferred by their written contract the tim
A further test, which is often applied, is whether the thing promised by the defendant is identical with the obligation owed by the third pei’son. If not — if it be to do something different, though it may include some part or the whole of
Eor the reasons stated we must conclude that the action of the trial court in ordering and entering judgment for defendant was erroneous.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for plaintiff upon the verdict.
Upon a motion for a rehearing there was a brief by Solon L. Perrin, attorney, and B. M. Bashford, of counsel, for the respondent.
In reply to such motion there was a brief by Luse, Powell> deForest •& Luse, for the appellant.
The motion was denied April 5, 1905.