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 1929-02

Willox v. Townsend , 245 Mich. 632 ( 1929 )


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  • Plaintiff was a subcontractor, working for one Schroeder, who had a contract to construct a building for defendant. This suit is for the balance unpaid on the subcontract, and is grounded upon the claim that defendant orally promised to pay plaintiff the balance in consideration of his completing the work, and that he did so. Plaintiff had verdict of a jury and new trial was denied by the court. Defendant's contentions are:

    1. That the declaration was insufficient to sustain the verdict. Not having challenged the sufficiency of the declaration at the trial by motion, nor objected to the admission of testimony thereunder, nor otherwise raised the question before verdict, defendant waived this objection.McHardy v. Wadsworth, 8 Mich. 349; Stone v. Covell, 29 Mich. 359; Merkle v. Township of Bennington, 68 Mich. 133; Frankel v. Coots, 41 Mich. 75.

    2. That plaintiff is estopped from maintaining the suit because of sworn statements and waivers of lien which he delivered to the general contractor. This defense was not pleaded (Circuit Court Rule No. 23, § 2), the record does not show it was suggested at the trial and it is not here for review.

    3. That the testimony failed to show consideration running to defendant to take his alleged promise to pay Schroeder's debt out of the statute of frauds. Plaintiff's testimony was that defendant promised to pay if plaintiff would complete the work; that he completed it in all respects except in one, in regard to which he was prevented from performance by defendant's daughter and by an immediately subsequent letter from defendant himself. This was sufficient consideration. McLaughlin v.Austin, 104 Mich. 489. *Page 634

    4. That the verdict was against the weight of the evidence. Plaintiff's testimony was contradictory. Defendant conceded that the parties had a conversation in which plaintiff's pay for his work was discussed. The essential difference between them was whether such conversation occurred before or after plaintiff's work was completed, and whether defendant said he would pay plaintiff or would help him get his pay from Schroeder. We agree with the circuit judge that the weight of the evidence was not so overwhelmingly against the verdict as to justify its reversal.

    The judgment is affirmed.

    NORTH, C.J., and CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred with FEAD, J.