Bowen v. Hastings

• Decision Date: 23 September 1879
• Citation: 2 N.W. 301,47 Wis. 232
• Parties: BOWEN v. HASTINGS and others
• Court: Wisconsin Supreme Court

2 N.W. 301

47 Wis. 232

BOWEN v. HASTINGS and others

Supreme Court of Wisconsin

September 23, 1879

APPEAL from the Circuit Court for Outagamie County.

This cause was before this court on the appeal of the defendant Van Nortwick from an order of the circuit court overruling his demurrer to the complaint, and is reported in 38 Wis 279. The complaint contains the contract between the parties upon which the action is founded, and the assignment thereof by the defendants to the Ames Wood Palp Company, and is sufficiently stated in the report of the case on the former appeal. This court then gave a construction to such contract and assignment.

The defendants have all answered. The substance of their answers so far as a statement thereof is here necessary, is that the defendants entered into the contract with the plaintiff, for the benefit of the Pulp Company to be thereafter organized under a parol agreement that, when organized, the company should be subrogated to the rights and liabilities of the defendants, who should thereupon be discharged from all further liability on the contract. The separate answer of the defendant Van Nortwick alleges that the plaintiff, as a director of the Pulp Company, demanded that the defendants should assign the contract to the company, procured the assignment to be drawn, and stated to the defendants that its execution by them would fully discharge them from all liability on the contract.

The cause was tried before Moses Hooper, Esq., as referee, whose findings of fact and conclusions of law are as follows:

"1. I find that the parties made the various written contracts set up in the complaint and answer:

"2. That on May 14, 1873, the Ames Wood Pulp Co., by direction of defendants, delivered to plaintiff stock as per contract, to the amount of $ 10,000.

"3. That plaintiff surrendered his stock in the Ames Wood Pulp Co. on January 15, 1874, as alleged by him.

"4. That when the assignment of the land contract was made from Hastings, Van Nortwick and Rogers to the Ames Wood Pulp Co. the assignors expected that they were relieved from their agreement contained in the contract with plaintiff.

"5. I find that the execution of such assignment was not procured by Bowen, except that he made some proper authority from Hastings, Van Nortwick and Rogers a condition precedent to his making a deed to the company.

"6. I find that the misconstruction of such assignment by the defendants was not caused by the fraud, or mismanagement, or fault of plaintiff, but that there was a mistake of law of defendants.

"7. I find that there was no parol agreement between the parties prior to, or at the time of, or subsequent to, the making of the assignment sued on by plaintiff, which should estop or exclude the plaintiff from enforcing the promise on which plaintiff's action is based.

"8. Neither Ames nor the Ames Wood Pulp Co. was a party to the parol agreement which preceded the making of the contract which plaintiff sues on.

"As conclusions of law I find:

"1. That the plaintiff became, by virtue of this contract with defendants, and the surrender of his stock January 15, 1874, entitled to have and recover on that day, from defendants, the sum of $ 10,793.33.

"2. That such right is not defeated or invalidated by the fact that Hastings, Van Nortwick and Rogers understood that the assignment by them to the Ames Wood Pulp Co. of the contract sued on released them from their liability.

"3. That the plaintiff should have judgment against the defendants for the sum of $ 10,793.33, with the interest thereon from the 15th day of January, 1874, besides the costs of this action. "

The circuit court confirmed the report of the referee, and rendered judgment for the plaintiff in accordance therewith. All of the defendants appealed from the judgment.

Judgment affirmed.

For the appellants, there were separate briefs by Collins & Pierce, their attorneys, and E. Mariner, of counsel, and oral argument by Mr. Collins and Mr. Mariner.

Chas. W. Felker, for respondent.

OPINION

WILLIAM P. LYON, J.

We think there is sufficient testimony in the case to support the referee's findings of fact. Hence such findings cannot be disturbed.

If the contract between the parties, and the assignment thereof to the Ames Wood Pulp Company by the defendants, receive the same construction on this appeal that was given them on the appeal of the defendant Van Nortwick (38 Wis. 279), it seems clear that the findings of fact fully sustain the referee's conclusions of law and the judgment rendered pursuant thereto. We are to determine, therefore, whether the contract and assignment must be construed on this appeal the same as on the former appeal.

That each question necessarily determined on that appeal is res judicata , as to the defendant Van Nortwick, by whom the appeal was taken, is perfectly well settled here and elsewhere. Du Pont v. Davis, 35 Wis. 631, and cases cited; Lathrop v. Knapp, 37 Wis. 307; Hutchinson v. Railway Co., 41 Wis. 541; Van Valkenburgh v. Milwaukee, 43 Wis. 574.

On that appeal it was held that the stipulation in the contract by the defendants, to pay the plaintiff a specified sum for the stock of the Pulp Company in case the plaintiff should surrender the same to them within two years, was an independent personal agreement of the defendants, and that the assignment contained nothing which discharged them from liability for its nonperformance. The contract and assignment were parts of the complaint, and it was necessary to determine their construction and effect in order to determine whether the complaint stated a cause of action. Hence, it seems clear that the defendant Van Nortwick is absolutely concluded by the decision and judgment of the court on his appeal, whether the court adjudged correctly or not, and that as to him the judgment of the circuit court must necessarily be affirmed.

But whether the defendants Hastings and Rogers who were not parties to the first appeal, are also concluded by the determination of that appeal, is a more difficult question. We have seen no case corresponding with this in its facts; but there are adjudications the principle of which seems applicable to this question. It has frequently been decided that if the holder of a joint obligation sues one of the joint obligors alone and recovers, and afterwards sues another joint obligor on the same obligation, the latter may plead the judgment against his coobligor in bar of the action against him. This is doubtless the common-law rule. Ward v. Johnson, 13 Mass. 148; King v. Hoare, 13 Mees & Welsb. 494; The People...