McCartney v. Hubbell

Taylor, J. From an examination of the verdict it is apparent that the case was submitted to the jury upon the theory that the defendant had produced evidence on his part which would justify the jury in finding that the contract between Needham and the defendant was, in fact, a contract between the defendant and McCartney j that Needham made the contract as the agent of McCartney, and for McCartney’s bene — 368 — fit, and with his assent. We think this was an erroneous theory. Admitting the truth of all the statements made by the defendant in his evidence, they do not tend to prove that the contract was the contract of McCartney. lie swears himself, substantially, that Needham did not tell him that he had any authority to buy the logs for McCartney, as bis agent, and the whole evidence tends to prove there was no such agency on the part of Needham. All the defendant pretends to claim is, that McCartney sanctioned the promise in the contract with Needham that he (Needham) should pay for the logs by an order for $150 of goods on McCartney, payable at his store, and that the balance should be paid in good negotiable and bankable paper or securities drawn by McCartney and becoming due «June 15, 1878. If the defendant can recover at all of MoCa/rtney for the value of the timber, sold to Needham, it must be upon the theory that he made the contract with Needham upon the strength of a promise made by McCartney, before the contract was signed, that if he sold the timber to Needham, he (McCartney) would pay for it at the times and in the manner stated in the contract; that is, he would accept the order for $150, payable in goods, and give his negotiable notes for the balance on the 15th [5th] day of April, payable on the 15th of June. This the defendant insists McCartney did promise'and agree to; and he bases his authority for so testifying upon what he alleges to be a fact, viz., that before he would sign the contract with Needham he saw McCartney, and read over the contract to him in his office, and that after hearing the contract read McCartney said it was all right. The defendant, in his counterclaim, so alleges. He says that plaintiff took the logs and timber from Needham (not from the defendant) knowing how he (Needham) had promised to pay for them, and that plaintiff agreed thereto, and on account thereof he (defendant) permitted the plaintiff to take the timber without taking legal steps to enforce the payinent therefor. The whole case, con — 369 — sidered in its most favorable aspect for the defendant, amounts only to this: that McCartney, before the contract was made between the defendant and Needham, orally -promised the defendant that if he made the contract with Needham as proposed, he (McCartney) would make the payment to the defendant promised by Needham at the times and in the manner set out in the written contract between them. There is nothing in the written contract between the defendant and Needham which tends to show that the title to the timber should vest in McCartney. Clearly the title to the timber under the contract vested in Needham when it was cut; and if it ever became vested in McCartney, it must have been by virtue of a separate and independent contract made between McCartney and Needham. We find little evidence in the case which justified the court in submitting to the jury the third question, and none to justify the submission of the tenth, viz.: “Did Needham purchase the timber mentioned in said contract as agent of McCartney?” Nor is there any evidence which will sustain the affirmative answer to such question. The evidence in the case justified the submission to the jury for a special verdict of the first, second, fourth, fifth, sixth, seventh and eighth questions, only modifying the fourth question by omitting-the reference to the third, and striking from the sixth question the words, “ that Needham had authority to make such contract and.” The affirmative answers to these questions, might be supported notwithstanding the conflict of evidence-in the case;, and it would then become a pure-question of law, whether, upon such verdict, the defendant would be entitled' to recover against the plaintiff upon his counterclaim. It wonld then raise the point whether the plaintiff’s promise was a promise to answer for the debt, default or miscarriage of another, and therefore void under the statute, or whether it ?ras an original promise on the part of the plaintiff to pay the-defendant the sum mentioned in the contract with Needham, — 370 — in case the defendant made the contract with him as contemplated, and permitted him to take the timber. The validity of this promise on the part of McCartney — if. there was one,— would depend very much upon the question whether the defendant delivered the timber to Needham relying solely upon the promise of McCartney to pay for the same, and not on the promise of Needhazn to pay as promised in his contract; or, in other words, whether the timber was delivered solely on the strength of the promise made by McCartney. In this view of the case, it would not be sufficient on the part of the defendant to show that the plaintiff (McCartney) knew of the terms of the contract before it was signed and the timber delivered, and that he (McCartney) did not dissent from its provisions, or approve of its provisions; but he would be compelled to show that there was a promise on the part of McCartney, in express terms or by clear implication, that he would pay the defendant for the timber as stated in the contract, if he delivered it to Needham; and, in addition, that the defendant did deliver the timber to Needham thereafter, relying solely upon such promise of the plaintiff. The mere approval of a contract by one person made between other parties, not on its face appearing to have been made on behalf or for the benefit of the person so approving of the same, would create no liability on the part of such person. This case, we think, must turn upon the questions whether the plaintiff promised the deféndant, before he made the contract with Needham, and before he delivered the timber, that, if he made the contract and delivered the timber, he (plaintiff) would pay defendant therefor; and whether the contract was after-wards made, and the timber delivered, relying upon such promise. Without looking into the charge of the court, which is not made a part of this record, we think it apparent, from the questions submitted to the jury for a special verdict, that this view of the case was not properly submitted for their consider — 371 — ation; and for that reason the judgment should he reversed. In order .to enable the defendant to recover damages against the plaintiff upon his counterclaim, he must bring himself within the rule established by this court in the case of Champion v. Doty, 31 Wis., 190. This rule would not apply as to his defense to the plaintiff’s claim for goods sold. Although the plaintiff was not legally bound to let the'defendant have the goods upon the Feedham contract, still, if the jury found they were sold and delivered to the defendant in part payment of the amount due the defendant from Feedham, the plaintiff could not recover their value of defendant in this action. What will amount to a defense against the claim of plaintiff for the goods sold is by no means a sufficient ground to enable the defendant to recover upon' his counterclaim. The fact, however, that plaintiff did deliver the goods to the defendant on the Feedham contract (if he did so deliver them), would be competent evidence upon the question of the promise to .pay the whole sum to become due to the defendant for the timber delivered. We thinlc the court erred in permitting the witness Keeler to testify to a conversation he had with Dennis Feedham, and to state what Feedham said he had told McCartney in a conversation had with McCartney some time after the contract had been made between Feedham and defendant. The object of this conversation was to show that McCartney, in that conversation with Feedham, had admitted he was to pay the defendant for the timber.* This was certainly a very material point for the defendant to make out, and we know of no rule of law which would justify his proving it by showing that Feedham had said such was the fact. This was the very essence of the contest between the parties, and in the conflict of evidence on that point it might have had great weight with the jury. It may be urged that this evidence was admitted to impeach the testimony of Feedham upon that point by showing that his statement made to the witness differed from that — 372 — made by him on the trial. But it does not appear that the evidence was offered for that purpose solely, nor does it clearly appear that any foundation was laid in the examination of Needham for the introduction of such impeaching evidence. Under the circumstances the jury might well have understood that the testimony was admitted and received as tending to show that McCartney h&á. in fact promised to pay the defendant for the timber. For that purpose the evidence was clearly incompetent, and should have been ruled out on the objection of the plaintiff. We are also of the opinion that the court erred in rendering judgment for a larger amount of damages than the 'jury awarded by their verdict. The jury, by their special verdict, apparently based their verdict as to damages upon the value of the timber which was actually received by the plaintiff, and which was taken from the lands of the defendant by Needham under his contract, instead of giving the whole contract price mentioned in the contract. By examining the special verdict, it will be seen that the amount of the value of the goods received by the defendant, added to the amount of the damages allowed by the jury, is about $52o, the sum claimed by the defendant as due him for the timber taken from his land at the time he filed his petition for a lien upon the timber. The jury may have taken this claim of the defendant, as to the amount due, as -the true amount, notwithstanding the contract called for more. It appeared from the evidence that a part of the timber was not taken, and still remained on the defendant’s land. The defendant not having made any claim, when he filed his lien, for the value of the timber not takenj the jury had the right to limit the damages to the value of the timber actually taken. Again, the jury may have based their verdict for damages against the plaintiff, over and above the value of the goods received by the defendant, in part and perhaps wholly upon the ground that the plaintiff had in fact received the timber, and might have refused to give any verdict for damages, had — 373 — they been instructed that if they gave the defendant damages they must give damages for the whole sum agreed to he paid by Needham in his contract with the defendant. The right of the defendant, upon the facts found by the special verdict, to have the whole contract price, notwithstanding the timber never came to the possession of the plaintiff, and was not removed from the lands of the defendant, is not so clear as to justify the court in ordering judgment in favor of the defendant for a greater amount of damages than was awarded by the verdict of the jury. Ve do not think there was any error in consolidating the two actions. The action brought by the plaintiff as surviving partner was in fact an action brought in his own right as much as the second action, which was brought in his name as an individual. Under the decisions of the courts, the defendant could make the same defenses by way of counterclaim and set-off to the one action as to the other. In Lawrence v. Vilas, 20 Wis., 381, Chief Justice Dixoit says that, “to a demand by a surviving partner, who sues as such, the defendant may set off a debt due him from such survivor individually; and, vice versa, a debt due to a defendant as surviving partner may be set off against a demand on him in his own right.” The same rule was established in Slipper v. Stidstone, 5 Term R., 493; French v. Andrade, 6 Term R., 582; Smith v. Barrow, 2 Term R., 476; Holbrook v. Lackey, 13 Met., 132. We can, not see how the plaintiff could be prejudiced by the consolidation of the two actions. The defendant’s counterclaim was just as available to the defendant in the one action as the other, and it would seem that it was a benefit rather than an injury to have but one trial. The actions were clearly subject to consolidation under the provisions of the statute, section 2792. The plaintiff could undoubtedly have joined the two causes of action in the same action. See Story on Partnership (6th ed.), § 346; Strauss v. Houghton, 38 Vt., 583; Holbrook v. Lackey, — 374 — 13 Met., 132, 134; Hancock v. Haywood, 3 Term R., 433; Stafford v. Gold, 9 Pick., 533. For the reasons before stated the judgment must be reversed. By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.