The following opinion was filed January 11, 1887:
Cole, C. J.
The legal questions involved in this case were considered and determined on the former appeal. 61 *3Wis. 195. It was then decided that the waiver, by a subcontractor, of a lien for materials furnished for the erection of a building, and the discharge of the principal contractor from liability therefor, constituted a sufficient consideration for a promise, by the owner of the building, to pay for such materials, and that such promise, to be valid, need not be in writing. It is true, it was assumed on the allegations of the complaint that the subcontractor had a valid lien upon the building which he might enforce, but reference was made to authorities which decide that this is not necessary, but that the discontinuance of an action, brought in good faith upon a doubtful claim, was a good consideration for a promise to pajr the owner. The defendant’s counsel says that no court has decided that where the hen of the subcontractor is -worthless, and he knows it to be so, that its withdrawal furnishes a good consideration for the promise of the owner to pay him his claim. The abandonment of such a claim for a lien, he says, would not be an3rthing of benefit to the promisor, or detriment to the promisee. We need not consider whether this proposition is sound or not, for no such question is presented in this case. There is nothing which tends to support the assumption that the plaintiff, when he abandoned his lien, knew that it was worthless, and could not be enforced.
For aught that appears in the evidence, or was attempted to be shown on the trial, the plaintiff supposed he had a valid lien upon the building. On this point it is said the defendant was not allowed to show the state of the account between the defendant and the contractor, Hier, or to prove that the plaintiff was informed that Hier had been overpaid -when the lien was abandoned. Tlie witness Wright, who transacted the business for the defendant, was asked questions tending to show these facts. The testimony was objected to, and excluded. It is now said that this evidence should have been admitted. There are two *4sufficient answers to the objection: (1) The statute gave a lien, not only for the amount which the defendant owed Hier upon the contract when the notice was given, but for what the defendant might thereafter owe him (sec. 3315); so that the state of the account at this time was not material. (2) This witness was afterwards permitted to tell all that was said upon the subject; so, if there was any error in excluding the questions when first asked, the error was cured by allowing the witness subsequently to state all that he could recollect about the conversation. And he did testify that he stated to the contractor, in the presence of the plaintiff, that he had been overpaid, and, after detailing at much length the conversation, he closes his testimony by saying, “ I have tried to state all that was said.” There is therefore no ground for the claim that the witness was not allowed to tell all that he knew, and all that was in fact said, when the alleged agreement was made.
The further point is made that the verdict is unsupported by the evidence. A reference to the bill of exceptions will show that this position is untenable. There is ample testimony to sustain the plaintiff’s case; besides, there was no motion for a new trial.
By the Court.— The judgment of the circuit court must be affirmed.
A motion by the appellant for a rehearing, on the ground that the court had mistaken the facts, was denied June 1, 1881