Opinion
January 13, 1955 —
February 8, 1955.
APPEAL from a judgment of the county court of Wood county: BYRON B. CONWAY, Judge. Affirmed.
For the appellant there was a brief by Brazeau Brazeau of Wisconsin Rapids, and oral argument by Richard S. Brazeau.
For the respondent there was a brief and oral argument by John J. Jeffrey of Wisconsin Rapids.
Action to obtain payment of a debt. The defense was an accord and satisfaction. Plaintiff obtained judgment upon a verdict and defendant appeals.
Defendant owned some growing timber. He made an oral contract with plaintiff whereby plaintiff was to cut the timber and the parties would divide equally the product itself or the proceeds of its sale. When the job was finished and much of the product had been sold or divided in kind between the parties, plaintiff brought his statement of receipts and disbursements to defendant's home for an accounting. This proceeded amicably until plaintiff produced the bill of a sawmill, amounting to $2,517.57, for the services of a mill in converting into lumber the logs which plaintiff had cut. Defendant figured up the other items, excluding the saw bill, and claimed that his share of the proceeds came to $988.90. Plaintiff insisted that the contract called for an equal division of the sawmill charge. The dispute grew heated. As plaintiff described the altercation, the defendant said:
"`I'll eat my shirt before I pay half of that saw bill' and I said `I will see that you pay it.' That was how we dissolved our partnership then and there, and I said `I will see you get your share and I will get mine,' and I went home." The parties did not meet again and within the next day or so plaintiff sent a draft for $988.90 to defendant with no explanation whatever. Concerning this the record shows the following testimony by plaintiff:
" Q. When you walked out of the door that day you were in disagreement about the saw bill. A. I sure was.
" Q. What did you do then? A. I told him I would live up to my agreement and I would see to it that he lived up to his.
" Q. Did you then go to the Wood County Bank? A. Yes.
" Q. And you drew a check for $988.90? A. That's what I figured I owed him and that's what I paid him. . . .
" Q. Mr. Neinfeldt, why did you send the sum of $988.90 to Mr. Schultz even though at that time you did it there was a dispute on between you? A. Because that was not a full settlement, because if I had done that I wouldn't have anything coming. I figured I would pay my full share I had and collect my full share."
At the appropriate times defendant moved for a nonsuit and a directed verdict. Both motions were denied and the case was submitted to the jury upon a special verdict of two questions:
"Question 1: Did the contract entered into between the plaintiff and the defendant provide that the cost of sawing the timber cut from defendant's real estate should be shared equally by the parties?
"Answer: Yes.
"Dissenting: None.
"If you answer Question 1 `Yes,' then answer this question:
"Question 2: Was the payment by the plaintiff of $988.90 to the defendant a compromise and settlement of the dispute between the plaintiff and the defendant of the mutual obligations of the parties?
"Answer: No.
"Dissenting: None."
Further facts will be stated in the opinion.
Defendant does not question the jury's version of the contract but submits that the question to be determined on the appeal is whether plaintiff and defendant entered into a compromise of all questions in dispute upon the basis of payment of $988.90 by the plaintiff to the defendant.
The defendant testified that there were a number of discrepancies in the accounts submitted by plaintiff, particularly in respect to a shortage of lumber delivered which amounted in cash to $300 and which the defendant waived in reaching $988.90 as the figure he would settle for. In other words, defendant asserts that $988.90 was put forth as an amount for which he would settle a disputed account and he contends that this offer was accepted by plaintiff by an unqualified payment of this amount. It may be granted that defendant's testimony supports such a conclusion. But plaintiff's testimony must also be considered. It is axiomatic that testimony is to be viewed in the light most favorable to support the verdict and if any credible testimony so viewed does sustain the verdict, the verdict must stand. The extracts already quoted are sufficient to show that the conference between the parties broke up with the plaintiff vowing to hold defendant to plaintiff's interpretation of liability for the saw bill. His last words informed defendant that plaintiff would compel defendant to pay one half of the saw bill. There was certainly no meeting of the minds at that moment on the question of settlement.
If settlement had been reached and its terms performed, as defendant contends, we would have no difficulty in following his reasoning that there was no question to go to the jury, but his argument rests on an assumption that, as a matter of law, the parties did agree to settle their conflicting claims by the payment of $988.90 to defendant by plaintiff and plaintiff manifested his agreement by the payment. Plaintiff's testimony of the final moments of the conference, if believed by the jury, establishes the direct opposite, and we consider that it was the province of the jury to determine whether the payment made the next day evidenced a change of mind by plaintiff and an acceptance of defendant's terms or whether it merely performed plaintiff's parting statement, in effect: "I'll pay you the money which I hold and you claim is yours and I'll make you pay what I claim you owe to me."
The jury found that the remittance by plaintiff was not made as a settlement of the mutual obligations of the parties. We think plaintiff's evidence was sufficient to take the question to the jury and supports the answers of the verdict. The judgment upon the verdict must be affirmed.
By the Court. — Judgment affirmed.