53 Wis. 336 | Wis. | 1881
Upon this appeal no point is made upon any of the findings of fact of the referee, or rulings of the circuit court thereon, so far as they relate to the amounts found due to the respondent upon his several claims against the appellant; but exceptions were taken to the refusal of the referee to find in favor of the appellant that he was entitled to a credit upon the several claims of the respondent for two items: one, $71.24, which the appellant claims he had paid to one Wilbur, one of the respondent’s workmen, and $22.75, which he claims to have paid to the firm of Athouse & Co. for work done for the respondent in the preparation of lumber, etc., in doing the work. Tiñese charges of the appellant were rejected by the referee and by the circuit court. .
The answer of the appellant alleges payment of all the claims of the respondent, and- there are no other allegations in the answer under which proof of the payment of these claims would be admissible. There was no application to amend the answer on the trial before the referee, or in the circuit court. The answer alleges that the defendant had paid to the plaintiff for and on account of his work the sum of $573.61, “ inclusive of payments made at the special instance and request of the plaintiff, and for which the defendant had become liable to other parties who had performed work and labor for the plaintiff in and about said business.” The evidence of the payment of the two items' above specified to- Wilbur and At-
Upon the question of the item claimed to have been paid to Athouse & Co., if we understand the evidence, the claim that it has been paid by the appellant is far from being established. The evidence seems to show that it has not been paid at all, but has been charged to the appellaht upon the books of the firm and remains still unsettled for; and there is no evidence that the respondent had any knowledge of the fact that the same was so charged, or that he had ever in any way assented thereto. The finding upon this item is clearly not against the weight of evidence, so far as we have been able to ascertain from the record. As to the item claimed to have been paid to "Wilbur there-is more evidence; and if we have clearly comprehended the -force of it, we certainly would not have reversed the finding of the referee if-he had found that it was paid with the assent of the respondent. The course of dealing, the manner in which the other men were paid, the fact that the respondent furnished the bill of "Wilbur’s work with the amount due him per day, and other evidence tending to show that there might have been an implied agreement that the appellant should pay the amount due him, would, we think, support a finding that the payment to him was made with the assent of the respondent. On the other hand, the respondent testifies that it was not paid with his assent. It also appears that nearly all the other payments were made upon the written orders of the respondent, and that the appellant admits it was paid without any written or verbal direction of the respondent; and the other fact that he claims it was paid because he had agreed with "Wilbur, before he commenced work, that he would see him paid for his work, might well have been taken
The learned counsel for the appellant, waiving the question whether the payment was made with the assent of respondent, insists that, Wilbur having done the work for the respondent upon appellant’s building, for which work Wilbur might have claimed a lien upon the building in .case respondent had refused or neglected to pay him, he was authorized to pay Wilbur the amount due for his wages without the knowledge or consent of his employer, and charge the amount so paid to him as money paid for his use and at his request; that the law in such case would imply a request. He bases this proposition upon the claim that in all cases where a contractor to erect a building for another employs other workmen to help him do the. work, the owner of the building is secondarily liable for the payment of the men so employed. We think this claim is unfounded. If one person employs another to construct a building for him, the contractor to furnish the materials and do the work, there is no secondary or other liability on the part of the employer, by reason of the contract, to pay any man who furnishes material or does work for the contractor. His liability to make such payment grows out of the statute
It is also claimed by the learned counsel for the appellant, that the payment made to Wilbur should have been allowed Upon the ground that, having paid Wilbur’s claim against the respondent, he should be subrogated to Wilbur’s right against the respondent, or that such payment to Wilbur should be treated as a purchase of the claim of Wilbur by the appellant, and so was a good set-off or counterclaim against the respondent. We are inclined to think, if the appellant was bound to pay the debt' due to Wilbur from the respondent, by
But, if that were so, it would not aid the appellant on this appeal. He did not in the court below set up this claim as a counterclaim for so much money due to Wilbur upon his account for work, and which, either at law or in equity, had been assigned to the appellant, but relied solely upon the evidence tending to show that the payment had extinguished the debt due to Wilbur for his work, and was made with the assent of the respondent. Having failed upon that issue in the court below, and not having asked any amendment of his pleadings in that court, so as to place his right upon the ground of counterclaim, he is in no position to ask this court to reverse the judgment in order to let him recover upon a case entirely different from that submitted to the court below. The respondent might well object that he had not litigated the question of how much there was due from him to Wilbur on the trial, and that he relied to defeat the appellant’s claim solely on the fact that the payment was made without his authority. There is no necessity of placing the decision of this court upon a ground not litigated in the court below, in order to protect the rights of the defendant. If he has paid these claims, as he contends he has, he can take an assignment of them; and, if the respondent refuses to pay them, he can enforce them against him in another action. We see no reason for reversing this judgment.
By the Court.— The judgment of the circuit court is affirmed.