105 Wis. 117 | Wis. | 1899
This action was commenced May 28, 1898, against Robert C. and Julius Thielmcm (copartners) and George W. Stubblefield, to recover $646.21 upon an account for goods, wares, and merchandise sold and delivered by the plaintiff to the defendants, at their special instance and request, at divers times between December 29, 1897, and March 7, 1898, as per itemized statement; that such goods were reasonably worth the sum stated; that no part thereof had been paid for except $2.50.
It appears, in effect, that the plaintiff was a farmer, and kept a general store at Butternut in Ashland county; that the defendant Stubblefield resided in Price county, six miles distant from Butternut; that Thielman Bros, resided in Lincoln county, and ran a meat market at Tomahawk, and also at Merrill, and also were engaged in the lumber business,— owned timber, cut the timber into saw logs, and sold the logs, and let contracts; that December 20, 1891, Thielman Bros, entered into a written contract with Stub-blefield, whereby Stubblefield agreed to cut, remove, and deliver into Swamp creek all the pine, spruce, and tamarack suitable for saw logs standing on the lands described; that one third of the price was payable to Stubblefield at the 1st of each month after the logs should be banked and the scale reported, “ and the balance to be paid as soon as logs are banked, and all labor and other claims have been paid.”
The cause was referred to a referee, and at the close of the trial before hint he found, in addition to the facts stated, that December 20,1897, Thielman Bros, requested the plaintiff to deliver to Stubblefield certain supplies, to be used in the prosecution of his logging operations, and then and there expressly promised and agreed to pay the plaintiff therefor on the 1st day of each month next following the delivery of the goods to Stubblefield; that the plaintiff, relying wholly on such promise, did furnish and deliver to Stubblefield the goods, wares, and merchandise mentioned, and that they were reasonably worth the sum stated; that the goods were sold and delivered solely and exclusively on the credit of Thielman Bros., and that no credit whatever was given by the plaintiff to Stubblefield; that Thielman Bros., and none other, became indebted to the plaintiff for the goods so de
On motions for confirmation of the referee’s report and to set aside the same, the trial court being satisfied that the clear preponderance of all the evidence was against all the findings of fact except the first, as to the contract between Stubblefield and Thielman Bros., it was by the court ordered that all the findings of fact and conclusions of law made by the referee except the first be, and the same were thereby, set aside, and the court filed its findings of fact and conclusions of law to the effect that December 20, 1887, Thielman Bros, entered into the contract with Stubblefield mentioned; that the plaintiff did not sell the goods in question, nor any goods, wares, and merchandise, to Thielman Bros., to be delivered to Stubblefield, but did sell. such goods, wares, and merchandise to Stubblefield himself; that Thielman Bros, were not in any manner indebted to the plaintiff for or on account of any goods, wares, or merchandise sold as set out in the complaint; that the sum mentioned was due and owing to the plaintiff from Stubblefield; that all the material allegations of the complaint in regard to the cause of action against Thielman Bros, were untrue, and that all the allegations in the answer were true.
And as conclusions of law the court found that the plaintiff was entitled to a judgment against Stubblefield for the amount named, with interest from March 7, 1898, together with the costs and disbursements of this action; that JRob&rt 0. and Julius Tlvielmcm were entitled to a judgment against the plaintiff for their costs and disbursements in this action, together with their costs and disbursements in the attachment proceeding in this action, to be taxed by the clerk of the court, — and ordered judgment to be entered accordingly.
This court has repeatedly held, in effect, that where, as here, a cause has been submitted to and tried by a referee upon oral and conflicting testimony, the findings of such referee should not be set aside unless they are against the clear preponderance of the evidence. Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214; Slauson v. Goodrich Transp. Co. 94 Wis. 646; Momsen v. Plankinton, 96 Wis. 166; Racine W. Co. v. Racine, 97 Wis. 93; Stanhilber v. Graves, 97 Wis. 517; Cunningham v. Brictson, 101 Wis. 378.
Such findings of the referee are entitled to the same credit in the circuit court as the findings of the circuit court in a cause tried by it have in this court. Id. In the case at bar, and after careful consideration of the evidence, we are forced to the conclusion that the trial court was justified in holding that the findings of the referee were against the clear preponderance of the evidence. In the complaint, verified by the plaintiff, it is alleged that all three of the defendants were indebted to the plaintiff for the goods; and yet there is not a particle of evidence that the three defendants jointly contracted for the goods, and there is nothing in the relationship of the parties from which such joint contract can be implied. The referee found against such theory, and that the plaintiff sold and delivered the goods exclusively on the credit of Thielman Bros., and not on the credit of Stub-blefield. On the other hand, the court found that the plaintiff sold and delivered the goods to Stubblefield, and not to Thielman Bros., and that they were not indebted to the plaintiff therefor. As indicated, Stubblefield resided near the plaintiff, and for years had been in the habit of trading with him, and getting credit at his store; and down to the time in question the plaintiff had never refused him credit. On the other hand, Stubblefield lived at a great distance from Thielman Bros., and they knew so little about him that they inquired of the plaintiff as to his responsibility before letting
By the Court.— That part of the judgment of the circuit court appealed from is affirmed.