Erickson v. McGeehan Construction Co.

WiNslow, J. The issues litigated in this case were two in number: (1) Was there a contract made by the defendant with Erickson, or with Dalquist for his benefit, that it would reserve the amounts of the board and merchandise bills of the men, and pay the same to Erickson? and (2) Has the defendant received moneys which in justice and right ■dealing belong to Friehson ? Upon the first of these questions the referee found from the evidence that no such contract was made. There was •ample evidence to sustain this finding, and the fact found was not intrinsically improbable. Giving to the referee’s finding that effect to which,it is entitled, namely, that it must stand unless against the clear preponderance of the evidence (Johnson v. Goult, 106 Wis. 247), we'cannot see how the trial court was justified in reversing it. There was ample evidence to support it, and certainly there was no clear preponderance against it. Hence the finding of the referee must stand. [54] The defendant having made no contract to pay Erickson or reserve any moneys for his benefit, it is impossible to see how it can be said to hold any money which, in justice and right, belongs to him. Its only contract was with Dalquist. When the pay rolls were presented, Dalquist owed, and still owes, it a large amount of money. It has, in fact, received nothing except that which is its own property, and by no means all of that. If it be now compelled to pay Erickson, it will simply pay him. out of moneys which, injustice and right, are its own moneys, instead of out of moneys justly belonging to Erickson. The case of Sterling v. Ryan, 72 Wis. 36, which is relied on by respondent, would justify no such judgment, because there the fact was found that there was an agreement participated in by all parties, that the laborers’ board bills -should be reserved by the contractors, and paid to the boarding house keepers. There being no such agreement in this case, it has no application. By the Gow't.— Judgment reversed, and action remanded' with directions to enter judgment for the defendant upon the findings of the referee.