72 Wis. 36 | Wis. | 1888
The following opinion was filed April 17, 1888:
The facts of this case appear to be substantially as follows: D. C. Shepard & Co., of St. Paul, Minn., were the original contractors to build sections 136-140, and sections 146-148, of the railroad of the Chicago, Burlington & Northern Railway Company, near the village of Victory, Vernon county, in this state, and in September, 1885, subcontracted said sections to the defendants; and said defendants subcontracted said sections 146-148 to one John A. Peterson in October, 1885, but he commenced upon his work in September. The contracts were all substantially alike except in the price to be paid, and each one contained such a provision that the railway company, D. C. Shepard & Co., and the defendants reserved the right to pay the
It is claimed on behalf of the plaintiff (1) that by virtue of such usage and custom the defendants impliedly promised and agreed to pay said bills, and thereby induced said
This appears to us to be a very plain case. The defendants undertook to pay the laborers, as they had a right to do under their contract with Peterson, to prevent liens on the road. They did pay the laborers in full, but only by
This is our understanding of the facts of this case.' It is quite different from the understanding of the facts by the learned counsel of the appellants, as appears by their briefs, but we are compelled to differ with the learned counsel both as to the facts and the law. The charge of the court to the jury in respect to any contract, express or implied the manner in which the defendants had before paid the board bills, and excepted to by the appellants’ counsel, was certainly sufficiently guarded by making such liability de
In Sharpless v. Welsh, 4 Dali. 279, A. placed in the hands of B. a bill of exchange, and ordered B. to negotiate it and pay the proceeds to certain creditors of A.; and B. promised to do so, and notified the creditors of the order. This was held to be a valid novation. Similar transactions were held valid and binding upon all the parties in Palmer v. Mason, 42 Mich. 146, and State Bank v. Chapelle, 40 Mich. 447, and in Little Wolf R. Imp. Co. v. Jackson, 66 Wis. 42; Drake v. Harrison, 69 Wis. 99; Murphy v. Hanrahan, 50 Wis. 485; York v. Orton, 65 Wis. 6. The case of Bull v.
But this is very familiar doctrine, and authorities need not be further cited. On the merits of the case the verdict seems to be warranted, and there are no errors in the record which affect the substantial justice of the judgment. On the facts, as we understand them, there could be no other and just result.
By the Court.— The judgment of the circuit court is affirmed.
A motion for á rehearing was denied June 20, 1888.