Winninghoff v. Wittig

• Decision Date: 13 October 1885
• Citation: 64 Wis. 180,24 N.W. 912
• Parties: WINNINGHOFF v. WITTIG AND OTHERS. WITTIG AND OTHERS v. WINNINGHOFF.
• Court: Wisconsin Supreme Court

64 Wis. 180

24 N.W. 912

WINNINGHOFF

v.WITTIG AND OTHERS.¹

WITTIG AND OTHERS

v.WINNINGHOFF.¹

Supreme Court of Wisconsin.

Filed October 13, 1885.

Appeal from circuit court, Washington county.

Paul A. Weil and Frisby & Gilson, for appellant.

Cotzhausen, Sylvester, Scheiber & Sloan, for respondents.

COLE, C. J.

We cannot see that the consolidation of these actions will result in any advantage to any one. It will inevitably delay and embarrass the appellant in the collection of the $200, which is admitted to be due him on the sale of his livery stock and business. He made that sale to Wittig and Louis Kern, and at the same time gave them his bond for $1,000, conditioned that he would quit the business of keeping livery at West Bend, and would not for five years engage in the business again, either on his own account or as a partner, nor as a servant for any one who was engaged in the livery business at that place. To his action to recover the $200 balance of the purchase money, the vendees set up in their answer as a defense that the appellant had violated the condition of his bond to their damage of $200. These were the issues in that action. It appears that soon after the sale by appellant to Wittig and Louis Kern, George Kern, Sr., and George Kern, Jr., became partners with them in the livery business at West Bend, and jointly interested in the observance of the bond by the appellant. And these four persons, as plaintiffs, commenced an action against the appellant to recover the $1,000 stipulated to be paid by him in case of a breach of the bond on his part. The appellant, in his answer to this action, admitted the giving of the bond, and denied the other allegation of the complaint. These were the issues in that action. It appears from the petitions of the plaintiffs in the last case mentioned, which was the basis of the motion made on their behalf to consolidate the two actions, that George Kern, Sr., and George Kern, Jr., when they entered into the partnership, agreed to be jointly liable with Wittig and Louis Kern for all debts and liabilities previously contracted by the latter, including the liability to the appellant for the $200 unpaid purchase money. The learned circuit court ordered that they be made parties defendant to appellant's action, and then consolidated the two.

The practice has long prevailed, where two or more suits were pending in the same court by the same plaintiff against the same defendant for cause of action which might be joined, to consolidate them into one action when it appeared it would be expedient to do so. 1 Tidd, Pr. 614; 1 Burrill, Pr. 411. Our statute provides that “when two or more actions are pending in the same court which might have been joined, the court or a judge, on motion, shall, if no sufficient cause be shown to the contrary, consolidate them into one, by order.” Section 2792. This statute expressly authorized the practice, which had long existed in the English common-law courts, of directing actions to be consolidated which might originally have been joined, in order to avoid costs and the delay resulting from trying several actions between the same parties involving the same question. See 2 Wait, Pr. 555; 2 Till. & S. Pr. 277. But the language of the books is that consolidation will not be ordered in cases where it would tend to render the trial protracted and embarrassing.

In this case the appellant sold his livery-stock and the good-will of the business to Wittig and Louis Kern. He contracted with them, and had the right to look to them alone for his pay. He was not bound to treat George Kern, Sr., and George Kern, Jr., as his debtors, and make them parties to his suit, even though they had engaged with his vendees to become jointly liable for his debt. It is true, it is well settled in this state that where one person, for a valuable consideration, engages with another, by contract, to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement. Kimball v. Noyes, 17 Wis. 695;McDowell v. Laev, 35 Wis. 171;Bassett v. Hughes, 43 Wis. 319;Houghton v. Milburn, 54 Wis. 554;S. C. 12 N. W. Rep. 23, and 11 N. W. Rep. 517. But, of course, it is optional with the party for whose benefit the promise is made to invoke this rule of law or not. He is under no obligation to rely upon it. So it is apparent the appellant was not bound to make George Kern, Sr., and George Kern, Jr., defendants in his action. But there is a more serious objection to the order of consolidation than the one stated. The cause of action growing out of the alleged breach of the bond was a separate and independent cause of action, not in favor of, but against, the appellant. How was it possible for him to join that cause of action with the one for the purchase money? The statute authorizes the consolidation of actions “ which might have been joined.” This clearly and necessarily implies actions in favor of the same plaintiff and against the same defendant. See McCartney v. Hubbell, 52 Wis. 361; S. C. 9 N. W. Rep. 61. It is said if the appellant had brought his suit against the four partners for the unpaid purchase money, they might have set up, by way of counterclaim, the cause of action arising from the breach of the bond. Suppose that to be so, how does that consolidation affect that matter? The appellant surely has a right of action for the money due him on the sale; the partners have a cause of action for the breach of the bond. But these are independent causes of action: one in favor of one party, the other in favor of the opposite party. It seems to us the consolidation has practically the effect of discontinuing the action on the bond, and allowing the obligees to set up that cause of action as a counter-claim to the plaintiff's suit. We do not understand that the practice of consolidation allows this to be done. The statute does not authorize the consolidation of cross-actions. In this case the order of consolidation must necessarily delay and embarrass the appellant, and we think it ought not to have been made.

We are clearly of the opinion that the order is appealable. There are two causes on the calendar in conformity to the notice of argument, but really there is only one appeal from different parts of the same order. Only one bill of costs will therefore be taxed. The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.

NOTE.

Right of Third Party for Whose Benefit Contract is Made to Sue Thereon.

At one time in England it was held that on an agreement between A. and B. for the benefit of C., the daughter of B., suit could be brought by C., Dutton v. Pool, Vent. 318; but it is now firmly settled in that country that the only parties who can sue on a contract are the parties between whom the contract is made. Tweddle v. Atkinson, 1 Best & S. 393; Price v. Easton, 4 Barn. & Adol. 433; Gurrin v. Kopera, 3 Hurl. & C. 694; Storer v. Gordon, 3 Maule & S. 308; Gresty v. Gibson, 4 Hurl. & C. 28; Chesterfield & M. S. C. Co. v. Hawkins, 3 Hurl. & C. 677; Hybart v. Parker, 4 C. B. (N. S.) 209; Reeves v. Watts, L. R. 1 Q. B. 412; Gray v. Pearson, L. R. 5 C. P. 568; Evans v. Hooper, 1 Q. B. Div. 45; Eley v. Assurance Co., 1 Exch. Div. 88; In re Empress E. Co., 16 Ch. Div. 125. In this country the English rule has been adopted and followed in many of the states. Segars v. Segars, 71 Me. 530;...