Thiel v. John Week Lumber Co. , 137 Wis. 272 ( 1908 )

WiNsnow, O. T.

We do not find it necessary to consider the errors assigned in detail. The fundamental questions in the case were whether, under the facts in evidence, the plaintiff was bound by Nelson’s scale, and whether he had lost his right to have a test scale made at the time he made his demand.

The testimony as to the accuracy of Nelson’s scale is not very satisfactory. Under his own testimony it appears that he actually scaled only a portion of the logs and estimated the balance, and it may well be doubted whether he in fact made a scale such as the contract required. But be this as it may, it is certain that on the 1st of April the plaintiff exercised his contract right of demanding a test scale, and all the evidence on the subject shows that at this time the logs were still in such a situation that a test scale could be made. The defendant refused this demand and thus breached the contract, and it was then competent for the plaintiff to show by other testimony the actual number of feet of logs cut and banked. This he did, and we cannot say that upon the evidence before them the jury were not. justified in finding, as they did, that the whole amount was 481,760 feet. Thus all questions concerning the alleged waiver of the right to demand a test scale become immaterial.

The court did not submit to the jury any question concerning the alleged assignment of the claim to third persons, and this omission is assigned as error. The evidence shows that during the progress of the work the plaintiff drew orders on the defendant in favor of third persons amounting to more than $800, which the defendant refused to pay. The form of the orders is not given, and hence we assume that they were merely general orders to pay money and did not name tbe fund from which they were to be paid. The debt could not be split up by the creditor against the debtor’s consent, even by formal assignments, because the debtor had the right to pay its debt in solido and to refuse to be subjected to claims or suits by various claimants. In the present case the debtor did so refuse, and could at any time have discharged its debt to the plaintiff by paying him the whole sum due, without regard to the rejected orders or liability to their holders. Skobis v. Ferge, 102 Wis. 122, 132, 78 N. W. 426. Hence it seems clear that, the defendant having refused to consent to partial assignments of the debt, the creditor could unquestionably maintain his action to recover the entire debt. Otherwise a situation would be presented where nobody could recover it.

No other questions are presented of sufficient importance to require treatment.

By the Court. — Judgment affirmed