Gimbel Bros. v. McConnell

Vinje, J. Plaintiff’s counsel says the finding of the trial court that “Defendant should assume and pay the account of said Bridge with the plaintiff” is not excepted to and is therefore a verity in the case. The language of the trial court is that the defendant entered into a contract with Bridge which provided that he should assume and pay the claim. Ordinarily this would be equivalent to a finding that he agreed to assume and pay it. But the language of the trial court, taken in connection with the undisputed facts, shows that he is merely reciting the provisions of the agreement placed in escrow, which was nothing more nor less than a reduction to writing of the terms of an understanding which both parties agreed should become binding in the event that Bridge should be able to transfer the property free from all liens except the two mortgages. It was only an agreement in fieri; an understanding reduced to writing but not to become operative until certain prescribed conditions were complied with. Such conditions in this writing were never complied with, so it never became an operative agreement. There never was an unconditional contract entered into between defendant and Bridge that the former should pay the latter’s account with plaintiff. On the other hand it was discovered that additional liens were [329] placed on tbe property wbicb tbe defendant bad to assist in paying. Bridge in terms released bim from paying plaintiff’s claim. Sucb agreement was not % release of any liability of defendant to plaintiff, for there bad been none; nor was it in fact a new agreement, since tbe contemplated one of July 17, 1911, never ripened into an agreement. Tbe facts of tbe case, therefore, do not bring defendant within tbe rule of Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440, and Wetutzke v. Wetutzke, 158 Wis. 305, 148 N. W. 1088, where it was held that a valid agreement entered into between two persons for tbe benefit of a third cannot be rescinded or altered without tbe consent of sucb third person. Plaintiff, upon being informed of tbe substance of tbe contents of the writing entered into July 17, 1911, sought for some time to collect its claim from both Bridge and the defendant. Tbe latter in substance always told plaintiff that be would pay tbe claim if Bridge fulfilled bis part of tbe contemplated agreement. Upon learning from Bridge that there was small prospect of bis being able to convey subject only to tbe two mortgages, plaintiff took bis notes for the amount of its claim and thereafter tried to collect them from bim as they fell due, and filed them in tbe bankruptcy proceedings. Tbe court found that they were taken in payment of tbe claim and that defendant was released. Were it necessary to pass upon this aspect of tbe case we should bold that tbe evidence sustains tbe findings. But as already indicated, we rest tbe decision upon tbe fact that no valid unconditional promise on tbe part of tbe defendant to pay plaintiff’s claim has been shown. By the Court. — Judgment affirmed.