Hassard v. Tomkins

Wisconsin Supreme Court

Hassard v. Tomkins

84 N.W. 174, 108 Wis. 186, 1900 Wisc. LEXIS 185

DecidedNovember 16, 1900

StatusPublished

This text of 84 N.W. 174 (Hassard v. Tomkins) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hassard v. Tomkins, 84 N.W. 174, 108 Wis. 186, 1900 Wisc. LEXIS 185 (Wis. 1900).

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Opinion

Winslow, J.

As will be seen from the statement of facts, the defendants have paid the plaintiff one half of all the cash received by them from Johnson, and the only claims about which there is any possible dispute are with respect to the $100 paid by Johnson in clearing and grubbing the land, and the $104 paid by Johnson upon the order of Tom-Jdns.

As to the first item there are two sufficient answers to the plaintiff’s claim: (1) The action is for money had and received, and this amount was never received by the defendants under any possible theory. (2) Conceding that the defendants were not authorized to make the lease containing this provision, still the plaintiff, by his own admission, was aware of its terms in 1895, and thereafter received payments thereon, and treated Johnson as his tenant, without objection; thus ratifying the lease as made.

As to the item of $104, it appears without dispute that TomJdns individually had an unsettled account with Johnson for supplies furnished. The order directs Johnson to pay Mitchell Bros. $104 and charge it to Tomhms's account. Johnson paid the money to Mitchell Bros, pursuant [189]*189to the order. Having made the payment under the order, he was bound to apply the payment as the order directed. He could not apply it to the rent account without TomJdns's consent, because the order, when accepted and paid by Johnson, became a contract, which definitely applied the money paid under it to TomJ&ms’s account.

A verdict for the defendants should have been directed.

By the Court.— Judgment reversed, and action remanded for a ne.w trial.

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Winslow, J.

As will be seen from the statement of facts, the defendants have paid the plaintiff one half of all the cash received by them from Johnson, and the only claims about which there is any possible dispute are with respect to the $100 paid by Johnson in clearing and grubbing the land, and the $104 paid by Johnson upon the order of Tom-Jdns.

As to the first item there are two sufficient answers to the plaintiff’s claim: (1) The action is for money had and received, and this amount was never received by the defendants under any possible theory. (2) Conceding that the defendants were not authorized to make the lease containing this provision, still the plaintiff, by his own admission, was aware of its terms in 1895, and thereafter received payments thereon, and treated Johnson as his tenant, without objection; thus ratifying the lease as made.

As to the item of $104, it appears without dispute that TomJdns individually had an unsettled account with Johnson for supplies furnished. The order directs Johnson to pay Mitchell Bros. $104 and charge it to Tomhms's account. Johnson paid the money to Mitchell Bros, pursuant [189]*189to the order. Having made the payment under the order, he was bound to apply the payment as the order directed. He could not apply it to the rent account without TomJdns's consent, because the order, when accepted and paid by Johnson, became a contract, which definitely applied the money paid under it to TomJ&ms’s account.

A verdict for the defendants should have been directed.

By the Court.— Judgment reversed, and action remanded for a ne.w trial.

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Bluebook (online)

84 N.W. 174, 108 Wis. 186, 1900 Wisc. LEXIS 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hassard-v-tomkins-wis-1900.