Kelley v. Schupp

LyoN, J. 1. The question whether, after Hennessy lmd performed the labor on the logs got out by McDonald, the defendants promised to pay him the balance due therefor, was not submitted to the jury. The learned circuit judge in his charge'made the case turn entirely upon the quéstion whether the defendants promised Hennessy before he did the work, either personally or through the authorized agency of McDonald, to pay him therefor. This is equivalent to a ruling that there was not sufficient testimony to go to the jury tending to show such promise after the work was done. McDonald testified that the defendant Sohupp made that promise to Hennessy in the defendant’s store after the close of the logging season, but Hennessy testified to the occurrences on that occasion, and says that the only remark made by Mr. Sohupp was to ask if $25, then paid him by a clerk, had been indorsed on his time-bill, and that he never had any talk with Mr. Sohupp about this matter. Were Hennessy the plaintiff in this action, we should be inclined to think him bound by this admission, and that the court properly disregarded the testimony of McDonald to the contrary. We do not perceive how the assignee of Hennessy can be in any better or different position. [83] 2. Ye are now to consider whether the alleged verbal promise of the defendant Toser, made (if at all) before the work was done, to pay Iiennessy for his work, is within the statute of frauds, and therefore void. On the authority of Young v. French, 35 Wis., 111, and Weisel v. Spence, 59 Wis., 301, and the cases cited therein, we are of the opinion that this question must be answered in the negative. The legal title to the logs was in the defendants under the permit from the owner of the lands on which they were cut. The only interest McDonald had thei’ein was confined to the surplus logs remaining after the defendants had sold sufficient of them to pay their advances and the interest thereon, their expenses in preparing the logs for market, for booming, stum page, and sluicing, their commission, and all charges or liens against the logs which they might pay or assume, pursuant to the stipulations in the contract with McDonald. His interest was contingent upon there being any surplus, and it turned out that the proceeds of all the logs were not sufficient to reimburse the defendants. There being no surplus, the interest of McDonald in the logs proved to be merely nominal. Thus holding the legal title of the logs, which the result of the enterprise showed was the onty substantial interest in them, and having bound themselves unconditionally to make advances to McDonald to the amount of $1,000, (to say nothing of the commissions and liberal interest they were entitled to, and the cost of stumpage and other expenses they agreed to pay), the defendants had a direct interest in having the logs cut, hauled, and run into the St. Ooix boom, and in avoiding the filing of liens upon them by McDonald’s employees. Hence the labor of Hennessy upon the logs was performed upon the property of the defendants, and inured directly to their benefit, as did also his neglect to assert a lien thereon for such labor. Under these circumstances the alleged promise of the defendants to pay [84] Hennessy for his labor (if made) was in furtherance of their own interests, and the consideration therefor was a benefit accruing directly to them. This takes the promise in question out of the statute of frauds under all of the authorities, particularly those above cited, from which the present case is not distinguishable. In this view of the case it is quite immaterial that the original contract to perform the labor was made with McDonald, who remained liable therefor, and that the exclusive credit was not given to the defendants. Wyman v. Goodrich, 26 Wis., 21. But we are further of' the opinion that there was sufficient evidence in the case to send the question to the jury, whether the exclusive credit was given to the defendants by Hennessy. That question answered in the affirmative would bring the case within the rule of West v. O'Hara, 55 Wis., 645, and the cases cited in the opinion by Mr. Justice OjjtoN. 8. The written contract between defendants and McDonald did not authorize the latter to employ men for the defendants, or bind them to pay for cutting the logs. Tho jury were so instructed, but the question whether the defendants so authorized McDonald verbally was submitted to the jury. The evidence of any such verbal authority seems to us very slight, and it is doubtful whether it is sufficient to support a finding that such authority was given. The important, if not the controlling, question in the <5ase is, Did the defendant Tozer, before Hennessy commenced work, promise to pay him for his work? If he did, the defendants are liable in this action. On this issue Hennessy testified positively to such promise, and Tozer as positively denied that he made it. There was no other direct testimony on the subject. The plaintiff introduced one Paekenham as a witness, who testified that he worked with Hennessy for McDonald in cutting and getting out the logs, and that during the follow [85] ing spring Mr. Toser promised to pay him for bis work. This promise was made after the witness had threatened to enforce a lien upon the logs. The testimony was received and retained against the objection of the defendants and their motion to strike it out. The effect of it upon the minds of the jurors may have been — -probably was — to strengthen the testimony of Hennessy as to the alleged promise by Tozer to him, by showing that he made a like promise to one similarly situated. There is no claim that the witness, when he did the work, had any promise of the defendants to pay him therefor, or that Hennessy knew that any promise had been made by them to the witness. This testimony was clearly inadmissible. Proof that the defendants made a like contract with another similarly situated, especially when Hennessy knew nothing of such contract, and could not have been affected by it, does not tend to prove that the defendants made the alleged contract with Hennessy. There is no logical connection between the two acts. Yet the admission of proof of the contract with Packenham, against defendants’ objection, was, in effect, a holding that it tended to prove the defendants made a like contract with Hennessy, and this testimony may have turned the scale in favor of the plaintiff. The case, in this respect, is not distinguishable in principle from the late cases decided by this court, of Gibbons v. W. V. R. R. Co., 58 Wis., 335; Kvammen v. Meridean Mill Co., id., 399; Nash v. Hoxie, 59 Wis., 384, wherein evidence of a similar character -was held inadmissible. The reasons for the rule there laid down are equally applicable here. It was ingeniously argued by counsel for the plaintiff that because it is denied in the answer that the defendants ever represented to Hennessy, “ or any other man or men employed by McDonald,” that the latter employed the men for them, the testimony of Packenham, taken in connection with other facts in the case, was competent as bearing upon [86] that issue. The answer to this proposition is that the witness did not testify that either of the defendants made any such representation to him, or in any manner admitted their primary liability to pay his claim, except by paying it. The reason why they paid it is obvious. They did so to avoid the enforcement of a lien upon their logs, and there is nothing in the testimony tending to show that they paid it because they were primarily liable therefor. It was error, therefore, to admit the testimony of Pack-enham, and, because such error may have been prejudicial to the defendants, it necessarily works a reversal of the judgment. 4. The trial judge refused an instruction proposed on behalf of the defendants as follows: “It is sometimes said that affirmative testimony is of more value than negative testimony. But I charge you that where one man affirms a fact and another positively denies it, the denial is not negative testimony within the rule just stated.” The proposed instruction, applied to the facts of this case, is to the effect that the testimony of Toser denying that he promised to pay Ilennessy for his work, is affirmative testimony. Yery clearly it is negative testimony. Ralph v. C. & N. W. R'y Co., 32 Wis., 177. Yet the jury might, in view of all the circumstances of the case, properly give to it as great, even greater, weight than they accord to the opposing testimony of ITennessy. The whole matter is for the jury. It was not error to refuse the instruction. 5. A question was raised as to the sufficiency of the assignment to the plaintiff. We think it sufficiently appears that Ilennessy duly assigned to the plaintiff his claim against the defendants. By the Court.— The judgment is reversed, and the cause remanded for a new trial.