McGillivray v. Cremer

Dodge, J. The finding of fact that no contract was made, being unexcepted to, is conclusive against the right of action here presented. Our authority to review findings of fact is limited to those duly excepted to. Sec. 3070, Stats. 1898. The various circumstances, such as conversations with Husch-ka and correspondence between appellant and respondent, the evidence as to knowledge or ignorance of plaintiff’s purpose to claim a lien, as also of the situation of the parties, are all merely 'evidentiary, bearing upon the conclusion of fact ■as to whether the minds of the parties met upon a promise by Cremer to pay this balance; hence are wholly immaterial to any question which can arise here in the absence of exception to that finding. Error is assigned because the court sustained objection to •an offer to prove that plaintiff had given instructions to his agent to perfect a lien. This was entirely res inter alios ■acta, and,, in the absence of its being brought to the knowl-. edge of the defendant Oremer, could have no possible relevancy to the issuable fact whether he did or did not make a promise to pay. In this aspect, of course,’ the discussion as to the application of the statute of frauds to this, a pi’omise to pay the debt of another, or as to estoppel of defendant to invoke that statute, needs no consideration. By the Court. — Judgment affirmed.