Schierl v. Baumel

• Citation: 75 Wis. 69,43 N.W. 724
• Parties: SCHIERL v. BAUMEL.
• Decision Date: 05 November 1889
• Court: United States State Supreme Court of Wisconsin

75 Wis. 69

43 N.W. 724

SCHIERL

v.BAUMEL.

Supreme Court of Wisconsin.

Nov. 5, 1889.

Appeal from circuit court, Jackson county; A. W. NEWMAN, Judge.

Action by Ignatz Schierl against Andrew Baumel to recover for goods sold. The court directed a verdict for defendant, and plaintiff appeals.

This action was commenced in justice's court. In his complaint the plaintiff alleged, in effect, that the defendant was indebted to him on an account for goods, wares, and merchandise sold and delivered to the defendant, at his special instance and request, November 10, 1884, in the sum of $75.33, according to the account thereunto annexed. The plaintiff obtained judgment in the justice's court by the default of the defendant. Thereupon the defendant appealed to the circuit court, and filed an answer therein to the effect that he admitted the receipt of the goods mentioned in the account, and alleged payment thereof by an order upon P. S. Davidsonand Oliver Darwin for the amount of said claim, and in full payment thereof, and that the same was received by the plaintiff in payment; that thereafter defendant settled with said Darwin, and upon such settlement the amount of said order was deducted by the said Darwin from the amount due from him to the defendant; that the order had never been returned, and that the debt had been paid as stated. The order mentioned was in the words and figures following, to-wit: “$80.00. Millston, Wis., March 12th, 1886. O. Darwin and P. S. Davidson: Please pay Ignatz Schierl eighty dollars, and charge to account. A. BAUMEL.” At the close of the trial the court directed a verdict in favor of the defendant, and from the judgment thereon the plaintiff brings this appeal.

Bleekman, Tourtellotte & Bloomingdale, for appellant.

Dwinnell & Waldo, for respondent.

CASSODAY, J., ( after stating the facts as above.)

Upon the trial the court held that the defendant had the affirmative of the issue presented. Thereupon the defendant gave evidence to the effect that the plaintiff called upon him, and requested payment of the amount of his bill; that he had not the money at the time, and thereupon informed the plaintiff that he had a contract with Darwin to get in logs for him from the land of Davidson; that there was a large amount due him upon the contract, and that he claimed a lien upon the logs therefor; that the plaintiff then stated that, if they owed the defendant anything, he would accept an order from him upon them; that thereupon the order, of which a copy is contained in the foregoing statement, was drawn and signed by the defendant, and by him delivered to the plaintiff; that subsequently, and before the commencement of this action, the defendant settled with Darwin, and that in that settlement the amount of the order was charged up to the defendant, and credited and allowed to Darwin; that the order had never been returned or presented to the defendant, and that he never saw it after it was given until it was produced upon the trial by the plaintiff's attorney; that the defendant did not know whether Darwin and Davidson, or either of them, had ever, in fact, paid the order; that, May 28, 1886, the defendant commenced an action against Darwin and Davidson to enforce a lien upon such logs. Thereupon the plaintiff gave evidence to the effect that at the time he received the order the defendant requested a receipt for the bill, but that the plaintiff refused to give it, saying he would accept the order, and give a receipt when he got the money; that the plaintiff presented the order to Davidson, who told him he did not owe the defendant anything; that the plaintiff thereupon wrote the defendant, who replied by directing him to send the order to Darwin, who might pay it; that Darwin did not pay it for the reason that he had no money to pay it, but said he should get some money from Davidson; that the plaintiff never got any money on the order. The plaintiff offered in evidence the judgment roll in the lien suit mentioned, from which it appeared that the amount due the defendant, and for which he obtained judgment against Darwin, and a lien therefor on the logs, after resistance of the same by Davidson, was $1,591.25. Testimony was also given, in behalf of the plaintiff, to the effect that in the fall of 1887 the defendant stated to a workman that the plaintiff got nothing on his order, and would not, nor for his account; that the plaintiff caused the order to be presented to Darwin, but was unable to get any money upon it; that subsequently the witness, in behalf of the plaintiff, had a talk with the defendant about paying it. The court having then ruled that it was immaterial as to what the defendant said to such witness about paying the order, the plaintiff thereupon offered “to prove by the witness that at that time he said he would pay the order” to the plaintiff. Thereupon the plaintiff was recalled by his counsel, and testified to the effect that, a couple of days after he presented the order to Davidson, and he refused payment, he wrote the defendant, and about two months afterwards saw him and told him.

The foregoing is the substance of the evidence upon which the court directed a verdict in favor of the defendant. The correctness of such ruling is the only question presented for consideration. Of course, for the purposes of this appeal, we must assume that the plaintiff could have proved by the witness who presented the order to Darwin that he subsequently talked with the defendant about paying it, and that the defendant then promised to pay the same to the plaintiff. If such promise, with the other evidence in the record, would have been sufficient to have required a direction in favor of the plaintiff, or to have carried the case to the jury, then such offer was improperly excluded, and the judgment must be reversed; otherwise affirmed. In Mehlberg v. Tisher, 24 Wis. 607, the defendant, being indebted to the plaintiff on settlement for labor in a sum named, gave to the latter an order on third persons for the amount of such indebtedness, with direction to pay the sum named to the plaintiff, and charge the same to the defendant. It appeared from the testimony that the plaintiff presented the order to the drawees for payment, but was informed by them that “they had no money to pay it;” that the plaintiff thereafter never had any conversation with the defendant about the order. The suit was brought upon the account for the labor against the drawer of the order, as here. The plaintiff recovered in the trial court, but the judgment was reversed in this court. In the opinion of the court, by DIXON, C. J., it was in effect said: “The written instrument [described] was a bill of exchange. It is not essential to the validity of a bill of exchange that it should be made payable to order or bearer, or have the words ‘value received,’ or be payable at a day certain, or at any particular place. * * * The taking of a bill of exchange on a previous indebtedness of the drawee to the payee is prima facie payment of the debt. It is absolute payment, if the payee or holder, through his own negligence, * * * fails to present it within the proper time, or, presenting it, fails to give proper notice of its non-acceptance or non-payment, in cases where such notice is required. * * * The bill here was presented for acceptance and payment, and both were refused; but no notice thereof was given to the defendant, Tisher. This was a discharge of the debt sued upon, unless it can be shown that the case was one in which such notice was not required. The general rule is that notice must be given. To this rule there are some exceptions; one of which is where the drawer has no funds or effects in the...