Kelly v. Bliss

• Decision Date: 07 February 1882
• Citation: 11 N.W. 488,54 Wis. 187
• Parties: KELLY v. BLISS.
• Court: Wisconsin Supreme Court

54 Wis. 187

11 N.W. 488

KELLY

v.BLISS.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, Racine county.

The amended complaint alleges that in February, 1868, the defendant, being the owner of a one-half interest in a vessel known as the Mechanic, contracted to sell to the plaintiff one-sixth of his interest therein, or a one-twelfth interest in such vessel, for the consideration of $675; that at or about the time the contract was made the plaintiff paid the defendant $400 on account of such purchase, and $50 additional in July following, and it was agreed that the balance of the purchase money should be paid out of the plaintiff's one-twelfth share of the net earnings of the vessel for 1868, if sufficient, and if not sufficient the plaintiff should pay the deficiency in cash; that plaintiff sailed the vessel as master during the season for navigation of 1868, and no account of her net earnings has ever been rendered to him; that in November, 1868, the vessel was wrecked and destroyed, through the negligence of a certain tug known as the Margaret; that subsequently the owners of the Mechanic brought an action in the district court of the United States against the tug Margaret and the owners thereof, to recover damages for the destruction of the vessel, and recovered $14,809.62, one-half of which was paid to the defendant in May, 1877.

It is further alleged that previously to and about the time such action was commenced “defendant requested plaintiff to aid defendant and the other owners aforesaid of said vessel Mechanic in the prosecution of the aforesaid action, and thereupon defendant promised and agreed with plaintiff that if plaintiff would be present and give his testimony therein in behalf of defendant, the other owner aforesaid, and would render such further aid and assistance therein as should be in plaintiff's power, then, in consideration of plaintiff's said services, the defendant would pay to plaintiff the said sum of $450, and interest thereon, in case defendant and other owners should recover their damages sued for in said action as aforesaid, whenever said damages should be received;” and, further, that the plaintiff fulfilled such condition on his part; and that after recovery in the action against the tug the defendant renewed his promise to pay the $450, and interest, to the plaintiff “whenever defendant should receive his damages sued for as aforesaid.”

This action was brought to recover said sum and interest. The original complaint makes no mention of the alleged agreement of the defendant to repaythe $450 and interest. With that exception it is very similar to the amended complaint. The defendant answered to the original complaint, alleging large expenditures by the defendant on account of the Mechanic, and that no account thereof or of the earnings of the vessel had ever been stated, and that plaintiff had never paid or offered to pay any portion of such expenditures. The answer alleges that the sale by the defendant of one-twelfth interest in the vessel was to the plaintiff's wife, and not to the plaintiff; and it concludes with the following averment: “Defendant further alleges that the contract for the sale of one-twelfth interest in said vessel to the said Marcellas S. Kelly, hereinbefore referred to, is the only contract for the sale of any interest in said vessel ever made between plaintiff, either personally or as agent, and defendant, and is the same contract mentioned in the complaint.” No further answer was interposed to the amended complaint.

On the trial the testimony of the plaintiff tended to prove the contract to repay the $450, and interest, alleged in the amended answer. At the close of the plaintiff's testimony the counsel for the defendant moved the court as follows: “I move the court for a nonsuit; and let me say that the plaintiff has shown no contract outside of the original to purchase one-twelfth of that vessel; and for this reason: A contract, in order to be a valid contract, and to amount to a contract, must be based on some consideration, and the consideration must be some legal consideration; must be the doing of some act that he was not legally bound to do, or required to do, as a matter of duty that he owed to his copartners.” The court granted the motion. Judgment of nonsuit was duly entered, from which the plaintiff appeals.

Edwin White Moore, for appellant.

Fish & Dodge, for respondent.

LYON, J.

The theory of the original complaint was that the contract between the parties for the purchase and sale of a one-twelfth interest in the vessel was purely executory; that no title passed to the plaintiff, and hence the vessel was at the risk of the defendant until the contract should be executed by an actual transfer of such interest to the plaintiff. If that theory is...