Gee v. Swain

12 Wis. 450

• Court: Wisconsin Supreme Court
• Decided: June 15, 1860
• Status: Published

Opinion

By the Court,

Paine, J.

The appellant objects that there was a variance between the contract sworn to by the plaintiff and that stated in the complaint, inasmuch as the latter states only an indebtedness for the work on the agreement to pay thirty cents per yard, while the plaintiff swore that he was also to deliver the commissioners’ certificates before 'he was to be entitled to his pay. He testified that he did deliver them or tender them both to the defendant, and they were produced and cancelled on the trial. Ho objection appears to have been made to his testimony on account of the variance, and if there had been, even assuming an amendment to have been necessary, the court should have allowed it to be made on the trial. It shows no ground for reversing the judgment.

We think also, the court properly refused the instruction asked by the defendant, and that the instruction it did give was correct. The point was, whether, after the plaintiff had taken a contract from the street commissioners for doing work chargeable to the defendant’s lots, and had partly performed it, he might then make a contract with the defendant to take him as his paymaster for the same work, and to receive the certificates for his benefit. This seems to have been the substance of the agreement, and it was clearly competent for the parties to make it. Of course, the reception of the certificates afterwards by the plaintiff, would be strictly in accordance with the agreement, and no indication that he took them in violation of it, and for the purpose of enforcing them for his own benefit.

We can see no error, and the judgment is affirmed, with costs.