Clapp v. Webb

• Decision Date: 27 September 1881
• Citation: 52 Wis. 638,9 N.W. 796
• Court: Wisconsin Supreme Court
• Parties: CLAPP v. WEBB.

52 Wis. 638

9 N.W. 796

CLAPP

v.WEBB.

Supreme Court of Wisconsin.

Filed September 27, 1881.

Appeal from circuit court, St. Croix county.

The complaint alleges that between September 1, 1875, and May 1, 1876, one Harrington was engaged in cutting, hauling, and banking certain pine saw logs, of which the defendant was the owner; that between the same dates the plaintiff furnished feed for the horses employed in that business, and performed labor and services in and about the cutting, etc., of such logs to the amount and value in all of $300, which sum was found due him therefor on an accounting between him and Harrington had in April, 1876, and that Harrington thereupon gave plaintiff a written order on the defendant for that sum. The cause of action is thus stated in the complaint: “Thereafter, and before the first day of June, A. D. 1876, this plaintiff presented said order to said defendant, and requested said defendant to pay the same; and that said defendant did then promise and agree to and with this plaintiff that he, the said defendant, would pay this plaintiff the said sum of $300; and that this plaintiff, relying solely upon said promise and agreement of said defendant to pay, as aforesaid, allowed the time in which this plaintiff might have filed a petition for a lien on said logs for said debt to run out and expire.” Judgment is demanded for $300, interest and costs. The defendant answered a general denial.

The testimony introduced on the trial tends to show that a portion of the logs described in the complaint were cut by Harrington, by virtue of a permit in writing from one Humbird, who owned the land upon which they were cut, and that the permit was assigned by Harrington to the defendant, as collateral security for advances made and supplies furnished by the latter to Harrington, on account of such logs, and perhaps, also, for a pre-existing debt; that the logs were sold June 15, 1876, and the defendant received the proceeds of the sale; but it does not appear that any of such proceeds remained after paying the indebtedness of Harrington to the defendant. The testimony also tends to prove the allegatians of the complaint in respect to the indebtedness of Harrington to the plaintiff, the accounting, and the giving of the order for $300 on the defendant by Harrington. The testimony of the alleged promise of the defendant to pay Harrington's indebtedness to the plaintiff was given by Harrington, and is as follows: “Mr. Clapp requested me to see Mr. Webb in regard to the amount of his order, and tell him that if he was hard up for money he would wait on him till fall, if he would give him a note. I met Mr. Webb and did the errand, and I think the answer he gave me was, ‘All right,’ or something to that effect. I told Mr. Clapp. He made out a blank note and I brought it down here for Mr. Webb to sign, and went to him, but did not see him. I went back home and sent it to him by mail, and I never saw it afterwards. This conversation with Mr. Webb was in May, about the time he was finishing the drive. It was up in the backwater here. I sent the note in the letter before the first day of June. I think I carried the note a few days before I was down, and when I went back I think I sent it right back to him. I am quite sure it was in May. I put the letter in the post-office, addressed to John E. Webb, Hudson.” The defendant testified, denying the above conversation, and denying, also, the receipt of the letter mentioned by Harrington. There is no proof of any interview between plaintiff and defendant, or any negotiations between them, directly or indirectly, in respect to the plaintiff's demand against Harrington, at any time before June 1, 1876, other than is contained in the testimony of Harrington, above quoted.

The charge of the judge to the jury is sufficiently stated in the opinion. The verdict was for the plaintiff for the amount of his claim. A motion for a new trial was denied, and judgment for the plaintiff was entered, pursuant to the verdict. The defendant has appealed from the judgment.A. H. & M. E. Clapp, for respondent.

John W. Bassford and L. P. Wetherby, for appellant.

LYON, J.

Assuming that the defendant promised orally, in May, 1876, to pay the indebtedness of Harrington to the plaintiff, and assuming also that the plaintiff could have enforced a lien upon the logs mentioned in the complaint, to the amount of such debt, at any time before the first of June following, the question to be determined is whether such oral promise is void by the statute of frauds. The learned circuit judge refused to instruct the jury that such promise is void...