McLean v. Nugent

33 Wis. 353 | Wis. | 1873

Dixon, C. J.

It was competent for the defendants, at the time of executing and .depositing the note with the chairman of the board of supervisors of the town, to stipulate or make it a condition that the note should only be delivered by the depositary to Carter, the party then under engagement by contract with and employed by the town in building the road. It was competent for the defendants at that time to agree with the supervisors, or to say or direct, that the note should only be delivered to Carter in case he completed the work to the satisfaction of the supervisors. We know not what interest the defendants may have had in requiring the note to be delivered to Carter, or in making it a condition that he should perform the work rather than that the work should be done by some other person, and the note delivered to that person ; nor is it material whether the defendants had any such special interest or not. It •was their right, if they chose, without particular interest, to make such condition, or to give directions that the note should be delivered to Carter on his performance of the work, in which case, if such was the agreement or direction, the delivery of the note by the chairman to any other person was unauthorized, by the-defendants and will not bind them, the fact being. undisputed that no delivery was made until after maturity of the note, or to a person unaffected with notice of the agreement between the defendants and the supervisors. The defendant Nu-gent, as witness upon the stand, testified to facts tending to show that such was the agreement between the defendants and the supervisors, or the chairman, with whom the note was deposited; and the court, in effect, withheld the consideration of that testimony from the jury. The court refused to give the second instruction asked for by the defendants, which was a proper one in view of the testimony so given, and then, in the charge, after having stated that such was the claim of the defendants, proceeded to comment on the testimony of the two supervisors in a way that must, or might, have very greatly prejudiced the jury in their consideration of the testimony given - by the defendant Nugent. It was error for the court to refuse the second request to charge made by the defendants; and such error was not cured by anything found in the general charge.

A still further and more palpable ground of error consisted, we think, in the omission of the court to submit for the determination of the jury the question whether the completion of the work on or before the first day of January, 1872 (the time specified for its performance under the contract with Carter, and also the time at which the note became due and payable), was or was not one of the conditions upon which the chairman of the board of supervisors was authorized to make final delivery of the note. The note and contract themselves furnish strong presumptive evidence that such must have been the understanding and agreement; and besides those there was the positive testimony to that effect of the defendant Nugent, who, in this particular, seems not to have been contradicted, or at least not clearly or directly, by the testimony of the two supervisors. The court omitted entirely, this part of the case made by the defendants, or which the evidence tended to make, thus making the verdict turn merely upon the performance of the work in substantial compliance with the specifications in the Carter contract, and the acceptance of the same by the board of supervisors, but without regard to the time of such performance, or when the acceptance took place. It appears to have been a fact not in dispute, that the work was not completed until long after the first of January, 1872, and that it was not accepted by the supervisors until after the month of June in that year.

By the Court. — Judgment reversed, and a venire de novo' awarded.