Malone v. Knickerbocker Ice Co.

60 N.W. 999, 88 Wis. 542, 1894 Wisc. LEXIS 107

• Court: Wisconsin Supreme Court
• Decided: November 13, 1894
• Status: Published

Opinion

NewMAN, J.

The defendant was not liable to the plaintiff for the services which he rendered to Malcomson, unless the defendant employed hirm-to render the services. It is not claimed that the defendant employed him prior to the alleged conversation with Field, nor otherwise than by that conversation. A considerable part of the services • — ■ more than one third of the entire bill —• was rendered -before the time of that conversation. If the defendant is liable at all, it is by reason of that conversation. Up to that time the debt was the debt of Malcomson, and charged to him on plaintiff’s book. If it ever became the debt of the defendant, it is because the words of Field can be construed to be a promise of the defendant to pay it. The words alleged to have been used by Field are not an unequivocal promise to pay for any part of plaintiff’s services to Malcomson, but they possibly may be construed to be such a promise; but, as to that part of the services rendered before that time, they could hardly be held to be a valid promise, in view of the statute (E. S. sec. 2307, subd. 2), which provides that every special promise to answer for the debt, default, or miscarriage of. another person shall be void unless it be in writing. It could be good by way of ratification only when it should appear that the services had really been rendered upon the defendant’s credit, and that the defendant’s agent, Field, knew that fact at thé time of making the promise. Ladd v. Hildebrant, 27 Wis. 135. The instruction requested, or its equivalent,- should have been given.

' By the Oourt.— The judgment of the county court is reversed, and the cause remanded for a new trial.