West v. O'Hara

• Decision Date: 31 October 1882
• Parties: WEST AND OTHERS v. O'HARA AND OTHERS.
• Court: Wisconsin Supreme Court

55 Wis. 645

13 N.W. 894

WEST AND OTHERS

v.O'HARA AND OTHERS.

Supreme Court of Wisconsin.

Filed October 31, 1882.

Appeal from circuit court, Green county.J. R. & D. S. Rose, for respondents, George F. West and others.

Orton & Osborn and N. E. Tuelly, for appellants, Edwin O'Hara and others.

ORTON, J.

The defendants were contractors to build a certain railroad, and one W. S. Murray was a subcontractor under them, and issued orders and time checks to the men in his employ, which the plaintiffs paid, as merchants, in goods as they were presented from time to time to the amount for which this suit is brought. By the pleadings the liability of the defendants must rest upon a previous agreement between the parties, and all other questions, objections, and exceptions are merely technical and will not be noticed. Both plaintiffs swear positively to an agreement with the defendants by Edwin O'Hara, before taking any such orders or checks, that they would pay them if presented on pay-day, and that such agreement was the sole inducement to their taking and paying them; and one of the plaintiffs testified that he informed Edwin O'Hara that they would not take them on the credit of Murray, for they had had trouble about getting their pay of him the year before, and that the defendants paid a large part of said orders and checks when presented, and finally offered to pay 45 cents on the dollar for the balance. Such payments are admitted in the testimony of Edwin O'Hara, but he denies the agreement.

The testimony of the plaintiffs in relation to the agreement was corroborated by the testimony of the witness Gallagher. The manner of payments by the defendants, as testified to by Edwin O'Hara, on the pay-roll of Murray, shows their interest in the general work, and certainly makes such an agreement very reasonable and probable. He says: “We generally paid our men first, and then we commenced on the subcontractors. Murray came in with his pay-roll and we paid his men first; merchants and boarding-houses came in afterwards,” etc. Without recapitulating the evidence or any considerable portion of it, for it is quite voluminous, it seems to us that it vastly preponderates in favor of the fact of such previous agreement, as testified to by the plaintiffs, and makes a clear case of the orders and checks taken and goods sold and delivered thereon by the plaintiffs on the sole credit of the defendants, and by the sole inducement of their agreement to pay the same. Whether treated as the purchase of the orders and checks or the sale of the goods, the principle of the defendants' liability is the same. Although in form the orders and checks of Murray, they are in substance and by this arrangement the orders and checks of the...