75 Wis. 69 | Wis. | 1889
Upon the trial the court held that the defendant had the affirmative of the issue presented. Thereupon the defendant gave evidence to the effect that the plaintiff called' upon him and requested payment of the amount of his bill; that he had not the money at the time, and thereupon informed the plaintiff that he had a contract with Darwin to get in logs for him from the land of Davidson; that there was a large amount due him upon the contract, and that he- claimed a lien upon the logs
Thereupon the plaintiff gave evidence to’ the effect that at the time he received the order the defendant requested a receipt for.the bill, but that the plaintiff refused to give'it, saying he would accept the order and give a receipt when he got the money; that the plaintiff presented the order to Davidson, who told him he did not owe the defendant anything; that the plaintiff thereupon wrote the defendant, who replied by directing him to send the order to Darwin, who might pay it; that Darwin did hot pay it for the reason that he had no money to pay it, but said he should get some money from Davidson; that the plaintiff never got any money on the order. The plaintiff offered in evidence the judgment roll in the lien suit mentioned, from which it appeared that the amount due the defendant, and for which he obtained judgment against Darwin and a lien therefor on the logs, after -resistance of the same by Davidson, was-$1,591.25. Testimony was also given, in behalf- of the plaintiff, to the effect that in the fall of 1887 the defendant
The foregoing is the substance of the evidence upon which the court directed a verdict in favor of the defendant. The correctness of such ruling is the only question presented for consideration. Of course, for the purposes of this appeal, we must assume that the plaintiff could have proved by the witness who presented the order, to Darwin that he subsequently talked with the defendant about paying it, and that the defendant then promised to pay the same to the plaintiff. If such promise, with the other evidence in the record, would have been sufficient to have required a direction in favor of the plaintiff, or to have carried the case to the jury,'then.such offer was improperly excluded, and the judgment must be reversed; otherwise affirmed.
In Mehlberg v. Tisher, 24 Wis. 607, the defendant, being indebted to the plaintiff on settlement for labor in a sum named, gave to the latter an order on third persons for the amount of such indebtedness, with direction to pay the sum named to the plaintiff and charge the same to the defendant. It appeared from the testimony that the plaintiff presented the order to the drawees for payment, but was
It is well settled that where the drawer of a bill or in-dorser of a note has been discharged by the holder’s laches, and then, with full knowledge of all the facts constituting such discharge, promises to pay the same, he thereby waives such laches and renders himself liable. Thornton v. Wynn, 12 Wheat. 183; Matthews v. Allen, 16 Gray, 594; Third Nat. Bank v. Ashworth, 105 Mass. 503; Trimble v. Thorne, 16
It is also well settled that the burden is upon the holder to prove such knowledge clearly and affirmatively. Trimble v. Thorne, supra; Edwards v. Tandy, supra; Tickner v. Roberts, supra; Hunt v. Wadleigh, supra; Walker v. Royers, supra; Freeman v. O'Brien, supra.
There is a class of cases holding that such knowledge
It follows that the mere offer to prove that the defendant promised to pay, without proving or offering to prove that such promise was made with knowledge of the facts constituting such laches, was properly rejected; and hence, upon the evidence in the record, the verdict was properly di-.. rected in favor of the defendant. f
By the Court.— The judgment of the circuit court is affirmed.