I

V.

HIGBY.

June Term, the plaintiffs and defendant, and it appears to the jury that
1860.
payments by the defendant have been made to a larger
RANNEY et al. amount than the item sued for, the plaintiffs cannot recover.
3. That when the plaintiffs select certain items of a running
account, and bring suit upon such items, it amounts, for the
purposes of the suit, to a waiver of the other items; and
upon proof by the defendant, of payments applicable to the
entire account, to a larger amount than the item sued upon,
he is entitled to a verdict.

June 4.

To these instructions the plaintiffs excepted. The jury found for the defendant, and from the judgment on the ver dict, this appeal was taken.

Smith & Salomon, for appellants.

Ogden, Brown & Ogden, for respondent:

Although there might have been a balance, on the gen eral account between the parties, due to the plaintiffs, they have not sued for such balance, and cannot recover it in this action. There was a running account between the parties, upon which the drafts were credited, and a general balance struck by the plaintiffs. This was binding upon them, and they could not select from this general account a single item upon which to sue. The payments were made as well upon that item as all others; the act of the plaintiffs, in suing upon that item alone, amounts to an abandonment of all the others; and if payments applicable upon the entire account are proved to an amount exceeding the item sued on, the plaintiffs cannot resort to the items not declared on, to increase their claim. The defendant has a right to notice, by the declaration, of the entire claim, so that he may disprove any item that is wrong.

By the Court, DIXON, C. J. This is the fourth time this case has been before this court. Whatever might have been our views as to the construction and effect of the original contract between the parties, were the question res integra, it must now, in view of the former adjudications, be regarded as res adjudicata.

By those adjudications, (4 Wis., 154, 5 id., 62, and 6 id., 28,) it is established that there was an absolute contract

1860.

V.

HIGBY.

between them, upon which the defendant was liable to June Term, pay the plaintiffs for the salt, notwithstanding it was lost in transitu, unless the defendant could show that they had RANNEY et al. received payment by the money secured upon the policy of insurance; and that the defendant is entitled to the acceptance of the insurance company, for the amount of the loss as adjusted by the plaintiffs. This last proposition seems to establish also, that the defendant is entitled to the certificate of the receiver of the insurance company given for the acceptance, and noted on the back of it. We do not propose to enter into any discussion of the correctness of either of these propositions. Upon the trial, the plaintiffs complied with the last, both with respect to the acceptance and certificate, provided those produced and offered to the defendant were the same received by the plaintiffs, upon which some doubts were raised. Without giving our own impression, formed from the evidence as it appears before us, upon this question of identity, we think that the circuit judge erred in refusing the ninth instruction asked by the plaintiffs' counsel, to-wit: that the fact that the words, "loss or damage by fire," are found in the certificate of the receiver, is not conclusive evidence that the claim certified originated in a loss by fire. It certainly needs no argument or citation of authorities to show that such recital in the certificate was not conclusive, and that it might be shown that it was not a loss by fire, and that it was so recited by mistake. It is contended by the counsel for the defendant, that the error committed by this refusal, was rectified in a subsequent portion of the charge, where, he says, it was in substance given. We do not think so. The instruction asked, which was correct, was plainly and pointedly refused. The subsequent instructions, in which the jury were told, that in determining the question of identity, they could consider as strong circumstances, the coincidence of dates, names, signatures, amounts, &c., it is true, look as if it was intended to submit to them the question of identity, notwithstanding the recital; yet from the manner in which they were given, we do not think they were calculated completely to remove from the minds of the jurors, the impression which they VOL. XII-5

1860.

V.

HIGBY.

June Term, must have received from such refusal. The jury were not directly told, that if, in their opinion, from the evidence beRANNEY et al. fore them, the draft and certificate were given in settlement for the loss of the salt, then their verdict should be for the plaintiffs. Indeed, some portions of the subsequent instructions seem to have an opposite tendency. They were told that there was no explanation of the mistake in the certificate, unless, indeed, they could draw it from the face of the draft, and other parts of the certificate, and that they must take all written instruments in their plain and obvious meaning. This language can hardly be said to be equivalent to giving the instruction asked by the plaintiffs' counsel.

The only other feature in which the case differs from what it was when heretofore before this court, grows out of the introduction in evidence of the statement of account, furnished by the plaintiffs to the defendant, in the letter of January 31st, 1852. The letter in which the balance claimed to be due is stated, and in which it is said the account is inclosed, was in evidence, as appears from the case reported in 5 Wis. We do not see how this varies the case. It is contended that the draft of $1500 appearing as a general credit in this statement of accounts, is conclusive proof as against the plaintiffs, that the moneys received upon it were applied generally to the account, and that the plaintiffs could not afterwards select a single item, less in amount than the general balance claimed to be due, and sue upon it, but must sue, if at all, for such balance. If this question is not to be regarded as settled by former adjudications in this case, still we do not think the proposition is correct particularly where, as in this case, it appears that the selected item sued upon, is the only one in the whole account about which there is any dispute between the parties. Certainly the defendant cannot complain at this course of proceeding. He is not wronged by it. If after having furnished such statement, the plaintiffs had sought to apply the payment to the disputed or doubtful item, and had then brought suit upon one about which there was no dispute, thus endeavoring to shun an investigation of the

doubtful item, there would be some reason for the rule. June Term, But here there is none.

1860.

The judgment must be reversed, and a new trial awarded. STREUBEL

*

*

* *

By an act of the legislature, which took effect in April, 1855, it was enacted that,
"All railroad corporations within this state, shall be responsible and obligat-
ed in law to the laborers on the line or lines of railroads being constructed
by said corporations, and are responsible and liable to pay for all labor per-
formed by said laborers, severally, upon said road or roads, to the persons
performing such labor *
and for the purposes of this act, all the usu-
al remedies by action are given to any and all such laborers against any such
corporation. *
No suit shall be maintained under the provisions of
this act, until such laborer shall have given thirty days notice in writing to
the president or secretary of such company, that wages are due him, and
that the company is required to make payment for such wages so due, stat-
ing the amount claimed." This act was repealed by an act which took effect
in March, 1857, and which enacted that, Whenever any laborer upon any
railroad in this state, shall have just claim or demand to the amount of twen-
ty dollars or more, for labor performed on such railroad, against any person
being contractor on such railroad with the railroad company for the con-
struction of any part of the railroad of said company, such railroad company
shall be liable to pay such laborer the amount of such claim, provided such
laborer shall have given notice to such railroad company, within thirty days
after such claim or demand shall have accrued that he has such claim or de-
mand, and provided also, such claim or demand shall have accrued within sixty
days prior to the giving of such notice, &c.:" Held, that a person who performed
labor for a sub-contractor, upon one of said railroads, in the summer and fall
of the year 1856, and in October of that year gave notice of his claim to such
railroad company, as required by the act of 1855, acquired a vested right to
recover from such company the wages of such labor, which the act of 1857
could not divest, and an action against the company, for such wages, though
not commenced until after the act of 1857 took effect, could be maintained.
COLE, J., dissenting.

APPEAL from the circuit court for Milwaukee county. The complaint in this action, which was filed in May, 1857, alleged that the plaintiff, Streubel, had performed labor to the amount of $536, on section 17 of the defendants' railroad, under the employment of a sub-contractor, who

June Term, 1860.

STREUBEL

V.

R.R. Co.

was engaged in constructing the same; that said labor was performed between the 22d day of April, 1856, and the 18th day of October following; that more than thirty days MIL. & MISS. previous to the commencement of the action, he gave notice in writing to the president or secretary of said railroad company, stating that wages for work done by him as a laborer on the line of said road, were due him, and that said company were required to make payment therefor, stating also the amount of wages so due; that said sub-contractor and the defendant, had always refused to pay him said sum ; wherefore, he demanded judgment, &c.

The defendant answered, denying that the plaintiff had performed labor on said road, and, for further answer, alleged that for all the labor done by the plaintiff on said road, he had been fully paid.

On the trial, the plaintiff proved the facts stated in his complaint. The counsel for the defendant, thereupon moved the court for a nonsuit, on the ground that the act of 1855, under which the plaintiff claimed to recover, was repealed by the act of 1857, and that there was no proof of such a notice to the company as the act of 1857 required; which motion the court overruled, on the ground that the service of the notice upon the company, before the passage of the act of 1857, gave the plaintiff a vested right, which subsequent legislation could not impair, to which ruling the defendant excepted. The defendant then proved that the subcontractor on said section 17, had been fully paid.

The court, among other things, charged the jury: "That the notice to the defendant having been given before the passage of the act of 1857, made the right of the plaintiff to hold the defendant responsible for wages, a vested right, which no subsequent legislation could impair;" to which charge the defendant excepted.

The defendant asked the court to charge the jury as follows: "That the plaintiff has failed to make proof of such a case, as, under the law, entitles him to recover against the defendant, and that their verdict must be for the defendant;" which instruction the court refused to give, and the defendant excepted.