Sicotte v. Barber, 83 Wis. 431

Sicotte v. Barber

83 Wis. 431 | Wis. | 1892

Cassoday, J.

Of course, if the defendants paid to the plaintiff the balance due upon full settlement, or if there was *433an accord and satisfaction, the plaintiff could not recover without alleging and proving fraud or mistake in such settlement. Manifestly the verdict was directed in favor of the defendants upon the theory that the undisputed evidence showed that the defendants made such payment upon such settlement. Upon a careful examination of the record, we are forced to the conclusion that this was error. True, the plaintiff testified that thirty days after he got through delivering the logs he called upon Davis (defendant’s agent) to get the balance of his money; that Davis looked in his book, and said, “ That is what is coming to you to-day,” or, “ There is so much coming to you to-day; ” that he appeared to have it figured up, and said that was right, according to his scale, and gave the plaintiff a draft, which he accepted without objection; that he, the plaintiff, then knew that the difference in the number of logs which the defendants, admitted to have scaled and the number which the plaintiff claimed to have delivered was 593; that at the time of receiving the draft he did not claim more because he was afraid if he did the defendants would hold all his money until he signed a receipt in full settlement; that, two hours after receiving the draft, Davis did ask him to sign a receipt in full, which he refused to do. We do not think this evidence, especially when taken in connection with the other testimony on the part of the plaintiff, justified the court in taking the question of settlement away from the jury. If there was no such settlement, then it was for the jury also to determine whether the parties agreed upon a scaler, and also whether all the logs delivered were scaled.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.