74 Wis. 144 | Wis. | 1889
The findings of the court are not assailed, except in so far as it is found that the plaintiffs ratified the Patrick contract after the timber had been cut, removed, and disposed of, With full knowledge of such cutting, removal, and sale. The plaintiff Warren testified, in effect, that he had a conversation with Stewart respecting the logs cut from these lands in May, 1882, and then told him that he understood that Stewart had purchased the logs cut by Landry on said lands, and that the plaintiffs would look to him for their pay; that he received such information from a letter written by Cochran, April 28, 1882; that he saw Cochran in May, 1882, and was by him notified that the timber was mostly cut off the land at that time; that he thereupon made inquiries, and found that Landry had logged there; that at that time Stewart told him he had bought Landnfs logs, and paid him some thereon; that subsequently he authorized his attorneys to make the verbal agreement; that he made an arrangement with Landry that if he paid over the $700, and the $800, with interest, he would deed him the lands; that subsequently the suit for the strict foreclosure of the contract was commenced; that, after they got judgment in that suit, their attorneys received the $700 pursuant to that decree, which determined that there was due the plaintiffs upon the contract in addition the $800 and interest. We must hold that the several findings of fact are all supported by the evidence and must be treated as verities in the case, and hence that the contract was in fact ratified, as found by the court.
The theory of the plaintiffs is that, assuming that the Patrick contract was valid when made, jmt it only authorized the cutting of the 200,000 feet; and that all cut in excess of that amount was wrongfully cut, and for which Landry and the other defendants became liable in trespass. Assuming this to be true, still it was competent for the
It is claimed that, as the strict foreclosure judgment was not pleaded in the separate answer of Landry, it is not, as to him, available ás an equitable defense. But it was so pleaded by the Stewarts and Alexander, and hence was admissible in their behalf. If the plaintiffs wished to avail themselves of such defect in Landry's answer, the objection should have been specific, in which event the same might have been obviated by an amendment. Besides, we are inclined to think it was admissible upon that answer, since it tended to prove that the trespass alleged had in fact been waived by the plaintiffs.
By the Oourt.— The judgment of the circuit court is affirmed.