4 Wis. 442 (Wis. 1855), Stone v. Talbot

Citation:4 Wis. 442
Opinion Judge:WHITON, C. J.
Party Name:STONE and another v. TALBOT
Attorney:Starkweather & Cameron, for plaintiffs in error. James H. Paine & Sons, for defendants in error.
Court:Supreme Court of Wisconsin

Page 442

4 Wis. 442 (Wis. 1855)

STONE and another

v.

TALBOT

Supreme Court of Wisconsin

December, 1855

Page 443

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ERROR from Milwaukee County Court.

Action of covenant brought by Talbot against Stone and Stone upon contract under seal, entered into by the parties February 20, 1854, at the city of Milwaukee, wherein Talbot covenanted with the Stones, who were copartners, to manufacture and finish in good substantial and workmanlike manner, 40 threshing machines of a certain kind, to be made of the same form, style and finish, as Talbot had made for the Stones the year previous, of which said threshing machines, 20 were to be ready for delivery July 1, 1854, and the other 20 August 1st, following, and to deliver all the machines on wagons or drays at the manufactory. The Stones covenanted by said contract, to furnish to Talbot all the necessary stock and material for the construction of the machines according to certain specification bills referred to in that contract; and to let Talbot have the shop then occupied by them with all the tools and machinery, engine, boiler and fuel for the same, for the purpose of manufacturing the machines, until August 1st, then next, and to pay to Talbot for the machines $ 3,160, in monthly payments, on or before the tenth day of each month, in such sums as should be due on the first day of the same month.

The plaintiff below, in his declaration, alleged due performance, etc., on his part, and nonperformance, etc., on the part of the defendants, to his damage $ 5,000, and filed a copy of the contract on which the action was brought, with bill of particulars.

The defendants filed their plea, alleging nonperformance specifically of the covenants and agreements on the part of the plaintiff, and damages by reason of such nonperformance on the part of plaintiff. They also pleaded by way of setoff the common money counts, and offered to set off and allow to the plaintiff below the full amount of damages sustained by him, according to the form of the statute in such case made and provided, and prayed judgment for balance due from plaintiff below to defendants below; and filed their bill of particulars, together with a supplementary bill of particulars.

Upon the trial of this issue below, the counsel for the plaintiff below first introduced and read in evidence, the contract under seal on which suit was brought, and then produced and examined a number of witnesses to prove performance on his part, according to the terms of the contract, extra work, etc., and without proving a delivery of the machines according to the contract, rested his cause.

On the part of the defendants, payment was proved to to have been made by defendants to plaintiff of several sums of money, as noticed in their bill of particulars, together with stock, materials, etc., had by plaintiff, amounting in the aggregate to a greater sum than was proved to be due by the plaintiff from the defendant, on the contract on which this suit was brought.

Upon the cross examination of Stone (who having been called as a witness for plaintiff was afterwards called on part of defendants), the counsel for the plaintiff below then offered to show that there was another contract between the parties in suit for building similar machines, and in proof thereof introduced a written contract signed by the parties, and not under seal, dated April 8, 1854, which provided for the building of machines by Talbot for the Stones and monthly payments by them.

To the introduction of this contract, the counsel for defendants objected, for the reason that it was not responsive to anything testified to by the witness on his direct...

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