Cameron v. Austin

• Decision Date: 06 April 1886
• Citation: 27 N.W. 622,65 Wis. 652
• Parties: CAMERON v. AUSTIN.
• Court: Wisconsin Supreme Court

65 Wis. 652

27 N.W. 622

CAMERON

v.AUSTIN.

Supreme Court of Wisconsin.

Filed April 6, 1886.

Appeal from circuit court, Clark county.

J. E. Campbell and R. J. McBride, for respondent.

Ring & Youmans, for appellant.

ORTON J.

The complaint of the respondent is for work and labor to recover a balance of $197.58 after deducting payments. The answer, after a general denial, sets up an oral agreement under which said labor was performed, by the terms of which he sold to the plaintiff 80 acres of land at the agreed price of $400, the plaintiff to pay interest thereon, and to pay the taxes on said land, and that he should pay therefor in and by said labor, and that his wages therefor, in excess of the support of the plaintiff and his family, were to be applied upon the payment for said land. It is further averred in said answer that after the plaintiff had finished and quit such work and labor, in September, 1881, the parties had a full settlement therefor, and the balance due the plaintiff found and liquidated at about the sum of $180, which was then, by their said agreement, applied upon and towards the purchase price of said land; that by virtue of said agreement the plaintiff went into possession of said land, cut and removed therefrom a large amount of the most valuable timber, worth the sum of $400. The prayer of the answer is that the plaintiff take nothing by his action, and for costs and disbursements. It will be observed that this answer sets up this contract and its part performance merely in defense of the action, and there is no counter-claim for specific performance.

On the trial the plaintiff testified substantially as follows: That there was such a contract made at the time of such settlement, and that he cut off the timber, and cleared off and fallowed about two acres of said land, and moved into a house on land adjoining, and cut and made 13,000 staves on said land, and that he had frequently asked the defendant for a written contract and for a deed. The plaintiff admitted to others that he had bought the land and that he had a petition drawn, and signed it as a freeholder of the town, for a road in the vicinity; and when the settlement for his labor was finally made there was due him $190, which was applied on said purchase, leaving $200 yet to be paid, and defendant was to take a mortgage on the land therefor, and defendant promised to make the deed when a certain Mr. Blakeslee got back. The plaintiff, however, denied that he had gone into possession of the land, and claimed that he got out the staves for one Mr. Rich, and he testified something about a subsequent arrangement by which he was to be paid in money, and the purchase abandoned, and about the inability of the defendant to make the deed. The defendant testified substantially denying the last part of the above testimony of the plaintiff, and stating the contract as set up in his answer; that he had previously contracted to sell this land to one Cook, and Cook had abandoned it; and that the plaintiff selected this particular land, and agreed to take it on the terms of the Cook contract; and that there was found due for his work $179.50, and that it was applied on the purchase. The plaintiff failed to pay the taxes as agreed, and the land was sold therefor, and the defendant was compelled to pay a large amount to redeem the same. The plaintiff moved up near the land, and cleared off two or three acres, and cut 25,000 staves from it, and frequently called the land his own, and went into possession of it. There was a conflict between the testimony of the parties as to whether the contract for the land was made when the plaintiff commenced work, or when the settlement was made and the balance found.

In the charge of the court to the jury the question of what the bargain was, was left to them to determine, and they were instructed that if they found that the contract for the land was made as claimed by the defendant at the commencement of the work, “then the plaintiff must take his wages in that way, and he cannot go back of his contract, and claim his wages in money, until the defendant has either refused or failed, upon proper request, to pay him in the manner which was agreed upon.” The instructions to the jury appear to have been that if the contract for the land was made at the commencement of the plaintiff's work, then the plaintiff must take the land, and he cannot recover, unless the defendant has refused to deed him the land; but if the contract for the land was made at the time of the settlement, or after most part of the work had been performed, then the contract was void under the statute of frauds, and cannot be set up in defense of the action. The instructions are not very clear on this distinction, but this appears to be their meaning, for the court says further: “The testimony shows that the plaintiff worked for a considerable length of time for the defendant, earned considerable money from him, and that at the time when he ceased working for him there was quite a balance due him. Now, there is testimony in the case which tends to show that he agreed to take a particular piece of land for his balance, and to pay whatever more it required to make up the price of the land,--the value of it; and it also appears that the defendant agreed to give him this land. But this agreement was by word of mouth, and was not reduced to writing, and so it was binding upon neither of the parties, and you should and must disregard that bargain, because the law will not enforce it. * * * This was not in writing, and for that reason is not binding upon either party. If this bargain to receive the land on the part of the...