Sterling v. Ryan

• Decision Date: 17 April 1888
• Citation: 72 Wis. 36,37 N.W. 572
• Parties: STERLING v. RYAN ET AL.
• Court: Wisconsin Supreme Court

72 Wis. 36

37 N.W. 572

STERLING

v.RYAN ET AL.

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from circuit court, Rock county; JOHN R. BENNET, Judge.

This was an action for money had and received, by Cyrus M. Sterling against Dennis Ryan and William Ryan, copartners as Ryan Bros. There was a judgment for plaintiff, and defendants appealed.O. B. Wyman and Winans & Hyzer, for appellant.

Butt & Graves and Fethers, Jeffries & Smith, for respondent.

ORTON, J.

The facts of this case appear to be substantially as follows: D. C. Shepard & Co., of St. Paul, Minn., were the original contractors to build sections 136-140, and sections 146-148, of the railroad of the Chicago, Burlington & Northern Railway Company, near the village of Victory, Vernoncounty, in this state, and in September, 1885, subcontracted said sections to the defendants; and said defendants subcontracted said sections 146-148 to one John A. Peterson in October, 1885, but he commenced upon his work in September. The contracts were all substantially alike except in the price to be paid, and each one contained such a provision that the railway company, D. C. Shepard & Co., and the defendants reserved the right to pay the laborers on said works in order to prevent any liens therefor being placed upon the road. The work upon the last-named sections continued from the 1st of September, 1885, to the 1st of January, 1886. The laborers were chiefly transient people, and many of them foreigners who followed railroad grading as a business, and a large force of them and many teams were employed in and about the grading and construction of the road-bed on said sections; and these laborers were boarded by different persons, residents of said village of Victory, and among whom was the plaintiff, by contract with the laborers themselves who were directly liable to pay therefor. It was the customary manner of doing business on these sections between the defendants, Peterson, the laborers, and the boarding-house keepers, that the pay-rolls were made out, under the direction of Peterson, for the work, board, and supplies of the previous month; and they contained the names of the laborers, the number of days they had worked, the rate per day, the total amount earned, deductions for board furnished, and the balance due them. The defendants then paid the laborers, or caused them to be paid, deducting their board bills so furnished, and they were paid to the boarding-house keepers. For the months of November and December, 1885, the laborers were paid in this way, and their board bills deducted, and the amount thereof was detained by the defendants to be paid directly to the several boarding-house keepers, at the instance of, and by an arrangement with, such laborers, in accordance with the usage and custom of the previous months. These are the bills of the said several boarding-house keepers which the plaintiff holds by assignment, together with his own, which constitute his cause of action in this case. It is claimed on behalf of the plaintiff (1) that by virtue of such usage and custom the defendants impliedly promised and agreed to pay said bills, and thereby induced said boarding-house keepers to board said laborers, and become liable to pay the same; and (2) that said laborers paid to said defendants, or left in their hands, the amount of said board bills, to and for the use of said boarding-house keepers. The jury found “that there was no express agreement or promise made by the defendants to the boarding-house keepers to pay them for the board of the men for whose board this action was brought.” But they also found that the defendants promised to pay the board bills of some of the men “when they made payments according to the pay-rolls.” This probably means that there was an implied promise on the part of the defendants to pay to the boarding-house keepers their board bills against the laborers, which they had deducted and retained from what was due the laborers for that purpose. The jury found also that, when portions of the laborers' bills for the months of November and December were paid by the defendants, the balance unpaid was to be paid to the respective persons with whom they had boarded in satisfaction of their board; and that such was the understanding between the defendants and said laborers, and this was done with the approval of the several persons with whom they had boarded, and with their understanding that they should receive the same from the defendants. To support these findings the time-checks made out of the laborer's work, with board bills deducted, and the balance receipted by the laborers, were in evidence, and in all cases the board bills were deducted to be paid directly to the boarding-house keepers. It appears also that this manner of doing business was assented to by Peterson, and by the defendants, as well as the laborers and boarding-house keepers.

This appears to us to be a very plain case. The defendants undertook to pay the laborers, as they had the right to do under their contract with Peterson, to prevent liens on the road. They did pay the laborers in full, but only by paying them the balance after deducting their board bills, and by agreeing to pay their board bills to the several boarding-house keepers who had boarded them. They have paid the laborers in full, or they have not. If they have not, then they ought to pay them as the...