McCourt v. McCabe , 46 Wis. 596 ( 1879 )

Lyon, J.

It was stated in the argument that the nonsuit was ordered because the plaintiff failed to deliver to the defendant the bill of sale of the wall, stipulated for in the coni tract. We are of the opinion that the nonsuit cannot be sustained on that ground. It does not appear that the defendant ever demanded the bill of sale, and the undisputed evidence shows that he refused to pay the award for the sole reason that it was too large. Under all the authorities, in this court and elsewhere, this refusal excused the delivery of the hill of sale. Some of these authorities are cited in the brief of counsel for the plaintiff.

Moreover, the bill of sale was entirely useless. The defendant was the owner of the half of the wall which stood on his lot, and might lawfully use it, without any conveyance thereof from the plaintiff, and the bill of sale would have conveyed nothing.

But it is argued by the learned counsel for the defendant, that the nonsuit may be sustained on other grounds. If it can, as a matter of course, the judgment should not be disturbed.

I. It is claimed that Cameron is a necessary party to this action. Ve think otherwise. He did not participate in the building of the wall, neither did he agree to build it. He has no interest in either lot upon which it stands, or in the money which the defendant has paid or may be required to pay for the wall, and is under no liability in respect to it. Manifestly, he is neither a necessary nor a proper party to the action.

II. It is further claimed that the proofs fail to show a contract binding upon the defendant, because the contract read in evidence is, in terms, a contract between the plaintiff and Cameron of the one part, and the defendant of the other part, and Cameron never signed it. ■

The defendant accepted the contract without the signature of Cameron thereto, and made payments to the plaintiff on account of the wall which he suffered the plaintiff alone to erect. He also entered into the arbitration stipulated for in the contract, with the plaintiff alone, and refused to abide the award on the sole ground that it was too large. Evidence of these several acts was clearly admissible, for such evidence does not infringe the rule which prohibits the admission of parol proof to vary the terms of a written contract. "We think the defendant has so dealt with the contract and with the plaintiff, that he cannot now be heard to allege that the plaintiff and himself are not the sole parties to it.

III. Another gronnd upon which it is sought to sustain the nonsuit is, that the award includes matters not submitted by the contract, in that the award expressly includes the cutting of the joist holes. The language of the award on that subject is somewhat ambiguous, but it' seems to be conceded that its meaning' is that the arbitrators allowed the defendant the cost of cutting the joist holes, which should have been left by the plaintiff when he erected the wall. If this is the proper construction of the award in that behalf, as we think it is, the arbitrators have appraised the value or price of the wall as the same was erected by the plaintiff. This is precisely what the parties in their contract stipulated that the arbitrators should do. We find here no excess of authority on their part.

IY. The only remaining reason alleged in support of the nonsuit is, that the plaintiff cannot recover without showing that he has performed the contract on his part. That might have been a valid reason for a refusal by the defendant to arbitrate, but it is not a valid objection to the award.

By the Court. — The judgment must be reversed, and the cause remanded for a new trial.