Blewett v. Gaynor

46 N.W. 547, 77 Wis. 378, 1890 Wisc. LEXIS 224

• Court: Wisconsin Supreme Court
• Decided: September 23, 1890
• Status: Published

Opinion

Taylor, J.

Upon this appeal the learned counsel for the defendant insists that the court erred in setting aside the findings and judgment of the referee, and in finding in favor of the plaintiffs and rendering judgment in their favor. They also allege as error the refusal of the court to permit the defendant to give further evidence in support of his defense, after the court had set aside the findings and judgment of the referee.

In order to intelligently consider the justice of the judgment in this case, it is necessary first to understand what is admitted by the pleadings in the case. After a careful consideration of the complaint of the plaintiffs and the answer of the defendant as to the plaintiffs’ cause of action for cutting and hauling the logs in question under the contract, it is evident that, in the absence of any evidence on the part of either the plaintiffs or defendant, the plaintiffs would have been entitled to judgment for the sum of $3,081.07 as the balance due for the logs cut and put in in 1883-4, and for the further sum of $3,444.33 as the balance due for putting in the logs in 1884-5. Possibly the value of putting in 280 feet should be deducted from this last sum, as the defendant does not admit the cutting and putting in this amount claimed by the plaintiffs. Plaintiffs claim 2,441,890 feet, and the defendant admits but 2,441,610 feet. This variation is too inconsiderable to affect the judgment in the case. Upon the pleadings the case stands in this condition: The plaintiffs allege the cutting and putting in of logs under the contract in both seasons to the amount of 10,258,050 feet at $3.50 per thousand, amounting in all to the sum of something over $35,500 due the plaintiffs by the terms of the contract for the work done, and the plaintiffs admit it has all been paid for except as to the sum of about $6,530. The defendant admits the amount of work done, and the contract price, and further claims that he has paid the whole amount due for the plaintiffs’ work under the contract. In this state of the pleadings it seems to us very clear that the burden of proof is on the defendant to show that he has paid the plaintiffs’ claim in full, or else judgment must go against him for the amount which he fails to show has been paid, not exceeding the amount claimed to be due by the plaintiffs.

This proposition is not contended against as to the amount claimed to be due for the second winter’s work, but the counsel for defendant maintains that, because the plaintiffs allege in their complaint that as to the work done in the-season of 1883-4 there was an accounting and a balance agreed upon, which the defendant promised to pay, the plaintiffs must prove such an accounting and settlement in order to recover the amount claimed as due for that year’s work. We cannot take this view of this pleading. The facts stated in that part of the complaint show the amount of money due to the plaintiffs for the first winter’s work to be over $27,000, and the statement as to the accounting simply amounts to an admission that it has all been paid-except tbe sum stated as remaining due and unpaid. It is simply an admission as to part payment, and does not turn the pleading into an action solely upon an account stated. The answer of the defendant does not specifically deny the fact that that amount was due to the plaintiffs for the first year’s work, unless the general denial which follows the allegations of payment in full for the amount due for both seasons’ work shall be considered-such denial. I suppose it will not be contended that where a plaintiff brings an action for work done at a given price, when the work is admitted to have been done and the price for doing it is also admitted, it would be necessary for him to prove that his claim had not been settled and paid, because he had alleged that fact in his complaint. Upon the pleadings alone it is clear that the plaintiffs are entitled to a larger judgment than the judgment rendered in this case by the circuit court.

The -learned counsel for the appellant insists if it be admitted that in the absence of any proofs by either party the plaintiffs should recover, then, upon the testimony given on the trial by Patrick Gaynor, the judgment should have been in favor of the defendant, and that the learned circuit judge erred in reversing the decision of the referee upon the question of a final settlement and payment by the defendant of all claims of the plaintiffs for the work done under the contract.

After carefully looking over the evidence given on the subject of the settlement and payment for the entire work, done under the contract, we conclude that the learned circuit judge was right in setting aside the findings of the referee on that subject. There is no evidence given by the plaintiff Bl&wett on the subject of settlement, except as to the first season’s work, and as to that he simply testified, in answer to certain questions, as follows: “ Question. At this time had the business of the former year been settled up, that is, bad be [meaning defendant] paid for wbat yon claimed to be tbe balance for tbe first season’s business? Answer. No, sir. Q. At that time, wbat did you claim was tbe balance of tbe old business ? A. Something over $3,000. Q. "Wbat did you claim to Mr. Gaynm* that tbe balance was, or bad you figured it together? A. Tes, we bad, three thousand and some odd dollars. Q. That is tbe figure you claim in figuring it out with him? A. Tes, sir. Q. A part of which be disputed? A. Tes, sir. Q. There were some items in tbe old business that be claimed as offsets that you would not allow? A. Tes, sir. Q. But on your claim to him it was something oyer $3,000? A. Tes, sir.” Tbe time referred to in this evidence was early in tbe fall of 1884. Tbe plaintiff Blewett was not cross-esamined at all by tbe defendant in regard to this testimony. Upon tbe final cross-examination of Blewett tbe following questions were put to and answered by him: “ Question. Tou understand that Air. James Gaynor settled with your partner, don’t you, for both years’ logging ? Answer. I never understood so. Q. Did you understand that they have settled all these matters? A.-1 did not. I have never understood that tbe first winter’s logging was settled for. Q. Never have understood that they have bad any settlement, then? A. No, sir; not for that one, anymore than wbat James told me that spring that be bad settled with Pat. Q. Then you did understand that be bad settled with Pat, didn’t you? A. For that winter I understood be claimed be bad settled with him. Q. Didn’t you understand be claimed be bad settled for both winters? A. No, sir; I didn’t. Q. Don’t you understand that has been done ? A, No,, sir. I know nothing of tbe kind. Never beard anything about it. I never beard that Pat and Jim bad bad a complete settlement of both winters’ logging.”

Tbe testimony of tbe plaintiff Blewett covers nearly eighteen pages of tbe case, and wbat is above quoted is all that in any way relates to any settlement of the claims of the plaintiffs against the defendant. All the other testimony of this witness was evidently introduced to sustain the plaintiffs’ claim for damages under their second cause of action, which was disallowed by the court.

It is very clear that the testimony of Blewett does not in any way sustain the contention of the appellant that the claims of the plaintiffs were settled and paid for before this action was commenced, and no claim is made that the settlement was proved by the testimony of Blewett. But the counsel for the plaintiffs put the plaintiff Patrick G-aynor on the stand as a witness in their behalf, and he was examined and cross-examined at great length. His testimony covers about thirty pages in the printed case. The plaintiffs evidently put this plaintiff on the stand mainly for the purpose of producing testimony to sustain their second 'cause of action for damages on account of the alleged refusal of the defendant to permit the plaintiffs to put in a larger quantity of logs in the season of 1884-5, and it will also be seen by a careful reading of his testimony that the plaintiffs did not question him at all in relation to any settlement or adjustment of the claims of the plaintiffs against the defendant, except such as had arisen out of the logging which was done the second season. It is not very apparent why the learned counsel for the plaintiffs examined this plaintiff upon the subject of settlement at all. But it is clear that he did not examine him at all as to any settlement, except as to the second season’s business, and what was said by this witness as to a general settlement of all claims of the plaintiffs for all work done under the contract was called out on the cross-examination by the counsel for tne defendant.

The question upon this appeal is whether the evidence of this witness, who though a party plaintiff is such party unwillingly on his part, and forced upon the other plaintiff by defendant, is conclusive that there was a fair settlement between the plaintiffs on the one part, and the defendant on the other, of all these claims. It is true, the witness says there was a settlement which was satisfactory to him, and that he gave a receipt in full; but he is unable to state how the accounts were adjusted, or how the admitted claims of the plaintiffs were adjusted and paid by the defendant. The admissions of the defendant upon the record show that the claims of the plaintiffs were not paid for in full by the defendant'in money payments. His account rendered shows that the actual payments made were several thousand dollars less than these admitted claims, and, in order to satisfy them, it would be necessary that he should be allowed a large sum by the way of his counterclaims for rent of outfit, and for using up and the destruction of such outfit, and for other claims made against the plaintiffs for breaking roll-ways, which claims were disputed by the plaintiff Blewett, and which are set up as counterclaims in this action. The evidence of the plaintiff Patrióle Gaynor as to a settlement of these claims and payment of them is simply a general statement that the settlement was made. The witness is unable or unwilling to state what claims of the defendant were allowed on such settlement, how they were settled, and how much was paid on such claims by the plaintiffs, or whether, in consideration of such agreement of settlement, the defendant released his claims against the plaintiffs upon the counterclaims set out in his answer in this action. He simply says he settled and gave a receipt in full, and can give no statement as to what was allowed in such settlement on either side, except that $500 was afterwards paid tó the witness by the defendant in pursuance of sueh settlement. The defendant did not produce the receipt which the plaintiff Pabridla Gaynor says he gave on such settlement.

We t.bi-nk the law is very plain that a settlement made by one of two partners of a claim due the partnership must be a fair- and reasonable settlement in order to bind the firm, and, if the settlement be in fraud of the firm or of one of the partners of the firm, it will not defeat the action of the firm. 1 Collyer on Partn. (6th ed.), 675; 2 id. 975; Barker v. Richardson, 1 Younge & J. 362; Phillips v. Clagett, 11 Mees. & W. 84; Viles v. Bangs, 36 Wis. 140; Cotzhausen v. Judd, 43 Wis. 216, 217. We think the learned circuit judge was fully justified in holding that this evidence was insufficient to justify a court or jury in finding that any settlement was in fact made, and especially that a fair and honest settlement had been made between the defendant and Patrick Gaynor, of the claims of the plaintiffs against the defendant. That the defendant did not rely with great confidence on the fact that a settlement of all their controversy had been made is evident from the fact that he pleaded his counterclaims in this action, and asked the judgment of the court on each of them. Considering the general statements of the witness as to the settlement, and the failure of the witness to give any intelligent statement as to what took place when such settlement was made, and the fact that the witness, although a party plaintiff, was clearly in the interest and to a considerable extent under the control of the defendant, the evidence of settlement of all the plaintiffs’ claims was not so clearly established as that a court or jury were bound as a matter of law to find that such settlement was in fact made. At best it can only be said that there was evidence which, if believed, tended to show a settlement, and it was still a question of fact for the court or jury to find either for or against the fact of settlement. We are satisfied with the finding of the learned circuit judge upon that point.

It is urged by the learned counsel for the defendant that as to the ] laintiff Patrick Gaynor, he ought not, on his own statement, to be entitled to recover in this action, and that the judgment should only have been in favor of the plaintiffs for one half their claims. There would be force in this contention if it were • established that, as between the two plaintiffs, each was entitled to one half the sum due from, the defendant; but their rights as between themselves are not shown by the evidence in this case. And if it should upon investigation be shown that Patrick Gaynor, as between himself and Blewett, was entitled to one half of the sum due them from the defendant, or more or less than one half, the defendant could probably limit the plaintiff Blewett in collecting the judgment to the amount which was actually due him from the defendant as between himself and Patrick Gaynor, upon his obtaining a release of the judgment by Patricia Gaynor, or by some proper proceeding to satisfy the judgment.

The learned counsel for the appellant insists that the judgment should be reversed because the circuit court refused to permit the case to be opened for the receipt of further testimony on the part of the defendant. This motion is one peculiarly addressed to the discretion of the trial judge, and his determination is conclusive unless it clearly appears that injustice will be done to the defendant by refusing to open the case and receive the evidence offered. As the defendant was permitted to withdraw all his counterclaims, and as the judgment is not greatly in excess of the amount admitted to be due upon the contract, exclusive of such counterclaims, and as it clearly appears that the defendant still has it in his power to limit the enforcement of the judgment to the amount actually due to the plaintiff Blewett on the contract as between himself and Patrick Gaynor, we do not see that any great injustice is likely to result from the refusal of the learned judge to open the case for further proofs. We must therefore decline to reverse the judgment for that cause.

By the Coiort.— The judgment of the circuit court is affirmed.