Kelley v. Schupp

• Citation: 18 N.W. 725,60 Wis. 76
• Parties: KELLEY v. SCHUPP AND ANOTHER.
• Decision Date: 18 March 1884
• Court: United States State Supreme Court of Wisconsin

60 Wis. 76

18 N.W. 725

KELLEY

v.SCHUPP AND ANOTHER.

Supreme Court of Wisconsin.

Filed March 18, 1884.

Appeal from circuit court, St. Croix county.

The plaintiff brought this action as assignee of one John Hennesy, to recover an unpaid balance for work and labor alleged in the complaint to have been done by the latter for the defendants as partners, between October 1, 1875, and March 27, 1876, in and about the cutting and hauling of certain pine sawlogs. It is alleged that the labor was performed at the special instance and request of the defendants. Also that one McDonald had charge of the work for the defendants, and employed the men for them to do it, and that the defendants promised to pay the men so employed. A promise by the defendants, made after the work was done, to pay Hennesy such unpaid balance, in consideration of which he omitted to enforce a lien upon the logs therefor, is also alleged. The defendants, by their answer, deny that they employed Hennesy to do the work, or authorized McDonald to do so, or ever agreed to pay Hennesy, or any other man or men employed by McDonald, for their work. They also specially deny an allegation in the complaint to the effect that they made certain payments to Hennesy on account of his work. Attached to the answer, as an exhibit, is a contract between the defendants and McDonald, dated November 3, 1875, in and by which it appears that one of the defendants held a permit, (presumably for his firm,) executed to him by the owner of the lands described in the contract, to cut and remove therefrom the timber standing on said lands. McDonald agreed with the defendants to cut, haul, mark the same with the defendants' mark, and drive all the pine timber on said land suitable for saw-logs during the logging season of 1875-76, and deliver the same to the defendants in the St. Croix boom free from all labor liens. The defendants agreed to advance $1,000 in goods and cash to McDonald, to be used by him in such business. The contract then provides that McDonald (party of the second part) will perform all the conditions of the permit to cut the timber, and that he, McDonald, “will pay to said Schupp & Tozer the amount of all their advances in goods, with interest at 12 per cent. per annum, and the amount of cash advanced, with interest at 15 per cent. per annum until fully paid, and a commission, per cent., and all expenses of preparing for market, and all boomage, stumpage, sluicage, and other charges or liens against said logs paid or assumed by first parties, (the defendants;) and first parties agree to receive said logs through said boom, prepare the same for market, and sell them on the best terms they are able, and from the proceeds, after deducting said stumpage, and all costs and expenses of preparing said logs for market, and all money advanced by them, with interest as aforesaid, and all goods and supplies, with interest as aforesaid, and a commission of two per cent. upon the gross amount of sales, for their services, to turn over the balance to second party or his legal representatives; and that, when said claims and all of them are fully paid, they will cause said mark to be transferred to second party, and all the remaining logs and timber bearing the same.” This contract was introduced in evidence by the plaintiff.

The testimony of Hennesy tends to show that after he had talked with McDonald about working for him, and after the price had been agreed upon, but before Hennesy commenced work, the latter told the defendant Tozer he was not acquainted with McDonald, and wanted to know how it would be about his pay, whereupon Tozer said, “I will pay you when the logs are sold.” Hennesy also testified that he relied upon Tozer for his pay when he did the work, and because of such promise he refrained from enforcing a lien upon the logs for the price of his labor. Tozer denies that he made any such promise. It seems to be established by the testimony that the defendants received and disposed of the logs got out by McDonald, and that the proceeds thereof lacked about $600 of paying the defendants' demands against him for advances, etc. There seems also to be some testimony of the promise alleged to have been made by defendants, after the work was done, to pay Hennesy the balance due him therefor, and perhaps also some testimony that McDonald was authorized by the defendants to employ men for them. Certain other testimony stated in the opinion was received under objection by the defendants.

The circuit judge charged the jury as follows:

“This case turns upon a simple question of fact as to whether the defendants promised, in consideration that the plaintiff's assignor, Mr. Hennesy, would work in the woods for Mr. McDonald, that they would pay for it. The question is whether there was a promise by the defendants to pay for that labor, or if, as is claimed by the plaintiff here, the defendants told Mr. McDonald to hire men on their account and that they would pay for it. That would make them liable,--a promise either personally, or a promise made by Mr. McDonald as an agent for that purpose. If you find that the written agreement offered in evidence was the only contract entered into between Schupp & Tozer and John McDonald, then I charge you that that contract of itself shows no agency on the part of McDonald for the defendants. There is nothing in his contract that makes McDonald agent for the defendants. But it is competent for them to appoint him their agent; authorizing him to hire men on their behalf, if they chose to, verbally. If they did so, they are liable to pay the plaintiff the demand assigned to him by Mr. Hennesy.

There is a direct conflict in the proof in this case. The defendants deny that they ever made any promise, and it is a question of fact for you to determine. It will not be necessary for me to refer to the proof, or to say anything further about the case. It is a question of fact for you to determine from the evidence. You are the sole judges of the credit to be given to each one of these witnesses, and you will consider their testimony and bring in a verdict as you may find. If you find for the plaintiff, the amount of his recovery will be $330; if you find for the defendant, you will simply say you find no cause of action.”

The court refused to instruct the jury as requested on behalf of the defendants as follows: “It is sometimes said that affirmative testimony is of more value than negative testimony. But I charge you that where one man affirms a fact, and another positively denies it, the denial is not negative testimony within the rule just stated.”

The jury returned a verdict for the plaintiff for the amount of his claim, and after a motion by defendants for a new trial had been denied, judgment for the plaintiff was entered pursuant to the verdict. The defendants appeal from the judgment.John W. Bashford, L. P. Wetherby, and R. H. Start, for respondent, James Kelley.

Clapp & Macartney, for appellants, Joseph Schupp and others.

LYON, J.

1. The question whether, after Hennesy had performed the labor on the logs got out by McDonald,...