Jones v. Foster

Cassoday, J. The testimony given upon the trial is not all preserved in the record. In fact, it is conceded that only a very small portion of it is so preserved; and that only so far as it covered certain points involved in the motion to set aside the verdict and for a new trial. The questions here presented arise upon the pleadings and the facts as found by the special verdict. 1. It is said there is a defect of parties plaintiff, in the -omission of Cummings Merrill, who was a partner of the plaintiffs in making the contract upon which the action is ■brought, and continued to be such for nearly a year after, when he withdrew from the firm and assigned and transferred all his interest therein, including the contract, to the — 307 — plaintiffs, to the knowledge of the defendants. The alleged defect appeared upon the face of the complaint, and hence might have been raised by demurrer, as provided in sec. 2649, E. S. It is only when any of the matters enumerated in that section do not appear upon the face of the complaint that the objection may be taken by answer, except that an objection based upon the statute of limitation may in any case be taken by answer. Sec. 2653, E. S. If none of the objections enumerated in sec. 2649, E. S., be taken either by demurrer or answer, the defendant is deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and to the sufficiency of the facts stated to constitute a cause of action. Sec. 2654, E. S. The manifest theory of the statutes is that all the other objections enumerated in sec. 2649, being technical in their nature, and not going to the substances of the matter, should be raised at the earliest opportunity; and where, as here, they appear upon the face of the complaint, to be disposed of by the court as a matter of law before the trial on the merits is reached. Redmon v. Phœnix Fire Ins. Co. 51 Wis. 298; Nevil v. Clifford, 55 Wis. 166, 167; Dreutzer v. Lawrence, 58 Wis. 597, 598; Hallam v. Stiles, 61 Wis. 272; Wood v. Union G. C. B. Ass’n, 63 Wis. 14; McLimans v. Lancaster, 63 Wis. 600. Here the defendants, in July, 1881, without raising any such objection, answered upon the merits. It is admitted that a trial upon the issue so formed Avas had in the fall of 1881, which resulted in a verdict and judgment in favor of the plaintiffs, which were set aside and a new trial granted, November 21, 1881. By such answer and trial the defendants Avaived all objection to the complaint on the ground of defective parties plaintiff, under the authoi’ities cited. Some tAvo months aftenvards the defendants put in a new ansAver, embodying a demurrer for defects of parties plaintiff, as above indicated. To make this available upon the — 308 — last trial, the defendants objected to any evidence being given under, the complaint. The statutes do not contemplate a demurrer of this nature as being embodied in an answer upon the merits. “ The defendant may demur to one or more of the several causes of action stated in the complaint, and answer the residue.” Sec. 2650, R. S. This clearly implies that he is not to do both to the same cause •of action. The two things are inconsistent. A demurrer admits the existence of every fact that is well pleaded. An answer upon the'merits takes issue with the same facts. Even an objection by way of answer on the ground of a defect of parties plaintiff, is by way of abatement and not in bar. Such a plea in abatement is waived by pleading the same matter in bar. Hooker v. Greene, 50 Wis. 271. With certain exceptions not material here, “ every action must be prosecuted in the name of the real party in interest.” Sec. 2605, R. S. Cummings Merrill had no interest whatever in the cause of action alleged in the complaint. That the interest which he previously had was assignable, under our statutes, cannot be questioned. Foster did not contract for Cummings Merrill’s personal skill, service, or supervision, and hence, the authorities cited by the learned counsel for the defendants are inapplicable. Besides, there is no question of rescission of the contract by reason of his withdrawal from the firm. On the contrary, the defendants, with knowledge of such withdrawal, went on and furnished a portion, of the logs under the contract. Of course, Cummings Merrill was, not, by such withdrawal, released from any liability to the defendants by reason of any breach of the contract as to any matter set uj> in any of the counterclaims. The defendants had their remedy by independent action against him and the plaintiffs jointly for the several breaches of contract alleged in the counterclaims; and in the same action could have proceeded in rem against the property sold by Foster to the firm, as was sought to be — 309 — done here. Had they done so, and in form obtained a judgment against all tbe original members of the firm personally, it might have been enforced, as prescribed by statute, notwithstanding Cummings Merrill was without the jurisdiction of the court. Secs. 2795, 2884, R. S.; Dill v. White, 52 Wis. 456. But the mere fact that Cummings Merrill would have been a proper defendant in such independent action did not make him a necessary party plaintiff as to the cause of action alleged in the complaint. Obviously, the objection was properly overruled. 2. It is said that the complaint states no cause of action against the defendant Richardson; and that is alleged as a defect of parties defendant by way of demurrer embodied in the last answer. An excess of defendants is not a defect of parties defendant. If the complaint stated no cause of action against Richardson, he should have separately demurred on that ground. But the complaint clearly did state a good cause of action against him. By his contract with Foster he agreed to assume all obligations to which Foster was held by virtue of the contract with the firm, and was to enforce the obligation therein assumed by the firm, and was entitled to collect of them the amount due on that contract, which claim was thereby transferred to him. By that agreement he became a party to the contract with the firm, and could hold the firm responsible for any breach of that contract. It is equally certain that the firm, and the plaintiffs as the assignees of Cummings Merrill, could hold him responsible for any breach of any of the obligations he thus assumed. Putney v. Farnham, 27 Wis. 187; McDowell v. Laev, 35 Wis. 371; Palmeter v. Carey, 63 Wis. 426; Johannes v. Phœnix Ins. Co. 66 Wis. 57, and cases there cited. 3. It is said, in effect, that the special verdict is insufficient to support the judgment, because it is not specifically found that the plaintiffs had, during- the time in question, — 310 — been ready and willing to perforin all the conditions of the agreement on the part of said firm to be performed. We think the verdict does, in effect, so find. The furnishing of the logs at the place named was a condition precedent to their being manufactured into lumber by the plaintiffs. When the jury found, in effect, that the defendants, without any valid excuse, refused to furnish to the plaintiffs, as agreed, the greater portion of the logs, and otherwise disposed of them, and that the plaintiffs did build a mill and have the pecuniary means whereby they could manufacture into lumber the defendant’s logs, and did manufacture all that were so furnished, the breach of the contract upon the part of the defendants, and • the readiness and willingness to perform on the part of the plaintiffs, may be fairly inferred. If the defendants wanted a more definite finding in that regard, they should have requested it; and its omission, without such request, was not error. Wilkinson v. Wilkinson, 59 Wis. 560. It is true that the findings; disconnected from the evidence given upon the trial, may seem to be somewhat inconsistent, and leave it in doubt whether the plaintiffs did not impose conditions upon their sawing the logs not authorized by the contract. Rut the bill of exceptions contains the opinion of the trial judge on the motion for judgment, in which the matter is made clear. He said: “ The defendants claim the contract is not binding on them for want of mutuality; that, whereas Foster agreed to deliver for sawing all the timber on the land which was profitable to cut, the plaintiffs did not agree to saw it all. By the contract, Foster ‘agrees to furnish logs, in yearly instal-ments to conform to the requirements of his trade, until all his timber is cut, or as nearly as it shall be profitable to cut.’ ‘ The time limited for the cutting of said timber is four years.’ ‘ It is distinctly understood that all logs put in any winter shall be sawed out the season following.’ No — 311 — want of mutuality is discovered. Foster agrees to put all the logs in. The plaintiffs are to saw all the logs that Foster puts in any winter the season following. Foster was to put the logs in, in yearly instalments to conform to the requirements of his trade. But his time to put them in was limited to four years in any event, whether required by his trade or not. Plaintiffs’ conditional refusal to saw the first instalment, of logs was not, as a matter of law, a breach of the contract. It was not, in the circumstances, necessarily a refusal to perform the contract on their part. By the contract they had the whole season to saw them in. There was some dispute about the terms of the refusal; but the jury have, in substance, found that it was not a refusal to perform the contract. The defendants have not performed the contract on their part. Their failure to perform necessarily excuses the plaintiffs from performing. The plaintiffs were ready to perform. The plaintiffs could perform only at their mill, and after the logs were delivered to the plaintiffs to be sawed. So the performance of the contract by the defendants was a condition precedent to its performance by the plaintiffs.” Since the evidence is not all before us, this statement of the facts by the trial judge must be regarded as a verity in the case. Buechel v. Buechel, 65 Wis. 536; Hoey v. Pierron, ante, p. 262. 4. It is said that the damages^ allowed in the judgment are, in any event, $300 too large. This claim is based solely upon the theory that the defendants were entitled to ten per cent, interest for four years on the $1,500 to be paid for the machinery. The court held that, as the machinery -was to be paid for in sawing logs which the defendants failed to furnish, the price of it was not available to the defendants as a counterclaim, but was an element to be considered in estimating the plaintiffs’ damages. The learned j udge said: “ For, if the contract had been performed on both sides, the — 312 — price of the machinery and. interest would have been deducted out of the plaintiffs’ profits. The plaintiffs’ profits on the whole contract would really be the difference between the actual profits on the sawing at the contract, rate, and the contract price of the machinery. The same sum or difference will represent this damage for the breach of the contract by the defendants. The plaintiffs agreed to pay $1,500 for the machinery. They agreed also to pay interest at the rate of ten per cent. It must have been contemplated that this interest should be paid until the principal sum should be paid under the contract. It was defendants’ fault that it was not paid under the contract. There should be allowed to them the same amount of interest as they would have been entitled to receive if the contract had been fulfilled on both sides. There is an element of uncertainty on this point. But it seems probable that if the defendants had fulfilled on their part, the whole principal sum and interest would have been paid within the first two seasons at least. It involved the sawing of less than one half of all the logs which were actually cut from the land, which by the contract were all to be sawed, at the longest, within four seasons. Add' to the contract price of the machinery two years' interest at ten per cent., deduct the payment of $343.75, and there remains unpaid on the machinery $1,456.25. Deduct, this sum from the sum of the plaintiffs’ unpaid profits for sawing, $2,096.25, and the difference is $640. This represents the sum of the plaintiffs’ profits upon the whole contract as nearly as it seems possible to estimate them from the ¿ato furnished by the special verdict and the facts admitted by the pleadings.” This seems to properly dispose of that objection. 5. Exception is taken to the order of the trial judge on appeal from the clerk from the taxation of costs. The disbursements allowed on such appeal seem to have been stated in detail and verified by affidavit filed with the clerk, as ro313 quired by sec. 2927, R. S.; ch. 91, Laws of 1880. The statute further provides, in effect, that, “ when there shall be charges in a bill of costs for the attendance of any witnesses, . . . or for any other disbursements except to officers for services rendered, such charges for witnesses shall not be taxed without an affidavit stating the distance they respectively traveled and the days they actually attended; . . . nor shall such disbursements be allowed without an affidavit specifying the items thereof particularly; nor unless they appear to have been necessary and reasonable in amount.” Sec. 2928, R. S. This section is substantially the same as 2 R. S. N. T. p. 653, sec. 7, ch. 10, pt. 3, tit. 5. The affidavit as to the witnesses stated, in effect, that they- were duly subpoenaed as witnesses on the part of the plaintiff in the action, and were necessarily in attendance on the trial the number of days, resided at the place, traveled the number of miles from their residence to attend the trial, as therein stated and set opposite their names, with the amount to which each was entitled. This affidavit seems to have been a substantial compliance with the statute, as to witnesses; especially as such attendance and travel must have appeared to the trial judge to have been necessary and reasonable in amount, for he allowed the same. It has been held in New York, in the cases cited by counsel, that where the witnesses were not sworn on the trial, or there was Some probability of their not being necessary, the affidavit should state that the witnesses were material and necessary, or that the party so believed. But in this case we think the affidavit was sufficient. So far as the disbursements “ to officers for services rendered” were concerned, they are expressly excepted from the provisions of the statutes cited. By the Gourt.— The judgment of the circuit court is affirmed.