Hannon v. Engelmann

• Decision Date: 11 May 1880
• Citation: 5 N.W. 791,49 Wis. 278
• Parties: HANNON v. ENGELMANN.
• Court: Wisconsin Supreme Court

49 Wis. 278

5 N.W. 791

HANNON

v.ENGELMANN.

Supreme Court of Wisconsin.

Filed May 11, 1880.

Appeal from circuit court, Milwaukee county.

H. H. & G. C. Markham, for respondent.

Finches, Lynde & Miller, for appellant.

COLE, J.

The county court overruled the exceptions which were taken to the findings of fact made by the referee. The first finding was, in substance, that between the first of June, 1871, and the first of February, 1878, the plaintiff, at the instance and request of the defendant, performed the labor and furnished the goods and materials mentioned in the complaint and amended bill of particulars upon the individual credit of the defendant, and that they were of the value set forth. It cannot be successfully denied that there was sufficient testimony to sustain this finding, and certainly there is no such preponderance of evidence against its correctness as would warrant this court in setting it aside, under our decisions upon this question of practice. Now, if the plaintiff really gave no credit to the Engelmann Transportation Company, but rendered his services, and furnished his goods and materials, solely on the credit and promise of the defendant, then it is plain that the defendant is liable for them.

It is objected on the part of the defendant that the manner in which the book accounts were kept by the plaintiff conclusively shows that he looked to the transportation company for the payment of some portion of the items charged and now attempted to be recovered of the defendant. But why the accounts were kept, or the various items charged, in the manner they were, is satisfactorily explained in the testimony; and the referee finds, as the fact doubtless was, that the credit of the whole account originally was given solely to the defendant, and not to the persons or corporations indicated in the caption or heading on the pages of the account. Undeniably a large amount of the items was furnished for the sole benefit of the defendant, and we think the evidence shows that he is liable for the payment of the whole account, or rather the balance due on what are described in the amended bill of particulars as accounts “A” and “B.”

The second defence in the answer sets up the statute of limitations to all the items in the account, commencing with the first of June, 1871, and ending the twenty-seventh day of July, 1872, or bearing date six years prior to the time this suit was instituted. To the bar of the statute the plaintiff's counsel gives the following answers: First, that the evidence shows that the account is a mutual and open account current within the meaning of section 21, c. 138, T. R. S., therefore the statute only began to run from the date of the last item charged; second, that the law would apply the payments which were made by the defendant from time to time to the extinguishment of the earlier items, and the balance of the account would not be barred. These answers seem entirely conclusive and satisfactory upon this defence. That the account was a mutual and open account current within the meaning of the statute does not, we think, admit of doubt The account shows a system of mutual dealings and of reciprocal demands between the parties beginning in June, 1871, and continuing to January, 1878. The plaintiff, on his side, rendered labor and services, and furnished materials of various kinds for the use of the defendant as required; and the defendant, on the...