Griswold v. Wright , 61 Wis. 195 ( 1884 )

Cassoday, J.

There is no claim that the notice alleged to have been given by the plaintiff as subcontractor was not sufficient to perfect his lien as such subcontractor under sec. 3315, íl. S. The notice being sufficient and given in time we must assume that the plaintiff had a valid lien upon the building, and might have enforced the same and sold the building by an appropriate action. While such lien existed the defendant could not escape liability to the plaintiff by paying Hire in full. But the plaintiff, at the request of the defendant, and in consideration of her promise and agreement to pay to the plaintiff the amount for which he held such lien, released his lien and discharged Hire from, all further liability, and accepted the .defendant as his only debtor. This, certainly, was a good consideration for the promise.

The discontinuance of an action brought in good faith upon a doubtful claim has always been held to be a good consideration for a promise to pay the amount of the claim. So a compromise of a doubtful claim is a good consideration for a promise to pay money, and it is no answer to an action brought upon such promise to show that the claim was invalid. Crans v. Hunter, 28 N. Y. 889; McKinley v. Watkins, 13 Ill. 140; Draper v. Owsley, 57 Am. Dec. 218. Here the claim was not doubtful. The defendant’s promise to pay was an implied confession that she was then indebted to Hire in at least the amount she then promised to pay to the plaintiff. This being so, her block was then charged with the payment of the plaintiff’s claim. The subsisting obligation of the defendant to pay the claim or have it enforced out of her block was a sufficient consideration to support the promise of payment. Cook v. Bradley, 7 Conn. 57; Burr v. Wilcox, 13 Allen, 269.

In Rippey v. Friede, 26 Mo. 523, it was held that the forbearance of a subcontractor to take the necessary steps to enforce his lien under the mechanic’s lien law of that state was a good consideration for the promise of the owner of the building to pay the claim. The case is even stronger than this, for there the question whether the defendant made the promise was disputed, while here it is confessed that the defendant not only promised, but that the plaintiff had actually given the requisite notice of lien, and then released the lien, and also discharged the principal contractor in consideration of such promise. Such release and discharge must be regarded as a sufficient consideration. Snell v. Bray, 56 Wis. 156.

It is urged that if the defendant made such oral promise, then it was within subd. 2, sec. 2301, R. S., and hence void. But the assumption that the promise was oral, and not in writing, is wholly unwarranted by anything contained in the record. A promise and agreement being alleged, we are bound to assume that they were valid rather than invalid, even if such oral promise would be within the statute. But we are by no means prepared to say that such oral promise would' have been within the statute. In fact, the decision in Weisel v. Spence, 59 Wis. 301, seems to hold that it would not. -In fact, this case is stronger, because it is alleged, not only that the lien was released, but that the original debtor was discharged, while in that case the original debtor was not released.

The matter of costs was in the discretion of the trial court, and we have no disposition to disturb the order by reason of the ruling made.

By the Court. — The order of the circuit court is affirmed.