Cliver v. Heil

• Citation: 70 N.W. 346,95 Wis. 364
• Parties: CLIVER v. HEIL.
• Decision Date: 23 February 1897
• Court: United States State Supreme Court of Wisconsin

95 Wis. 364

70 N.W. 346

CLIVER

v.HEIL.

Supreme Court of Wisconsin.

Feb. 23, 1897.

Appeal from circuit court, Wood county; Charles M. Webb, Judge.

Action by Henry Cliver against Louis Heil. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action to enforce a claim for services performed upon logs and timber, under the lien law. The amount of the claim was $291.71. The defense was that, at the time the action was commenced, the sum claimed was not due and payable, but the amount of plaintiff's claim was conceded. Services were rendered under a written contract between the parties, which did not specify any time of payment; and the defendant insisted that, by a parol agreement between the parties, the amount claimed was not to become due until on or about May 1, 1896. The defendant offered to prove: (1) That the parties had agreed as to just what their contract was, and had some talk as to the time of payment, and that they agreed to leave that out of the written contract. This evidence was excluded, on the ground that it tended to vary the terms of the written contract. (2) That, at the time the contract was made, it was verbally agreed between them that the plaintiff was not to receive his pay until about May 1, 1896, when the defendant would receive his pay for the timber in question of the Upham Manufacturing Company; but as he did not have his contract with him, so as to ascertain when it would be payable, the contract in question was drawn up without any specification on that subject, and with the verbal agreement that the plaintiff would wait for payment until the defendant should receive his money under his contract with the manufacturing company. This evidence was objected to, and excluded, as tending to vary the terms of the written contract by parol evidence. (3) That it appeared that a settlement was made between the plaintiff and defendant February 21, 1896, by which the sum claimed was found due, and the defendant gave the plaintiff an order, in general terms, bearing the date last aforesaid, upon the Upham Manufacturing Company, to pay Henry Cliver or bearer the amount so found due, and to charge to the account of Louis Heil. This order was brought into court, and surrendered, plaintiff not having received anything thereon; and the defendant offered to prove that the plaintiff asked him to give the order, and, as a special favor, not to date it April 1st, as he was hard up, and that possibly he might be able to get...