Pomainville v. Grand Rapids, 157 Wis. 384.

substituted statute. There were good reasons for inserting the word "his" in the statute. The section in which it occurs relates to condemnation of land and deals exclusively with an accounting between the city and the owner of the land condemned growing out of the condemnation. It speaks of damages and of damages and benefits and provides for offsetting the one against the other. It nowhere speaks of benefits alone which cannot be offset by damages. As the statute now reads, it conforms to similar statutes relating to the condemnation of lands for railroads, sec. 1848, Stats. 1913, and to condemnation for highways, sec. 1271, Stats. 1913, where special benefits accruing to the owner of the land condemned may be offset against damages. See Washburn v. M. & L. W. R. Co. 59 Wis. 364, 18 N. W. 328. It is not a statute relating to public improvements where benefits may be assessed in the absence of any taking of land or of damages.

It follows that the city was without jurisdiction to assess any benefits against the land in question and that the circuit court properly entered judgment canceling the assessment.

Since there was an entire lack of jurisdiction on the part of the city to make any assessment at all against the lands, its claim that the plaintiffs are estopped to challenge the validity of the assessment because one of them appeared before the board of public works and stated that he made no objection to certain assessments of benefits against his lands, none of which were taken, cannot be maintained. Jorgenson v. Superior, 111 Wis. 561, 569, 87 N. W. 565. Moreover, when he appeared before the board of public works he appeared in his individual capacity and not as an executor. By the Court.-Judgment affirmed.

Walter Brothers B. Co. v. Kluck, 157 Wis. 388.

WALTER BROTHERS BREWING COMPANY, Appellant, vs. KLUCK, Respondent.

May 4-May 21, 1914.

Principal and agent: Evidence of the relation: Parol evidence affecting writings: New trial.

1. In an action to recover a balance alleged to be due upon account for goods sold and delivered, although the invoices, bills of lading, and some expressions used by the parties in their correspondence were such as might naturally be used in case of sales, yet, there being also in the writings numerous indications that only an agency arrangement existed, and among them a bond given by defendant reciting that he had been appointed plaintiff's agent and was faithfully to perform the duties of such agency, oral testimony to the effect that the true relationship of the parties was that of principal and agent was properly admitted and was sufficient to sustain a verdict for defendant. 2. Newly discovered evidence which is merely impeaching in its character does not ordinarily form a ground for a new trial.

APPEAL from a judgment of the circuit court for Portage county: A. H. REID, Judge. Affirmed.

For the appellant there was a brief by J. Elmer Lehr, attorney, and Lehr, Kiefer & Reitman, of counsel, and oral argument by J. Elmer Lehr.

For the respondent the cause was submitted on the brief of D. I. Sicklesteel.

WINSLOW, C. J. In this action the plaintiff corporation claimed that the defendant was indebted to it in the sum of $7,636 as a balance due upon an account for beer alleged to have been sold and delivered to the defendant between March, 1894, and August, 1909. The defendant admitted the delivery to him of the beer, but denied that he purchased the same, and alleged that he simply handled it as the agent of the plaintiff.

This issue was tried by the court and jury and determined

Walter Brothers B. Co. v. Kluck, 157 Wis. 388.

in favor of the defendant. The plaintiff's claim now is that the correspondence of the parties, the form of the invoices, bills of lading, and other writings which passed between the parties establish indisputably the fact that the beer was sold to the defendant rather than delivered to him as agent, and that the court should have admitted no oral testimony tending to show that the real relationship of the parties was that of principal and agent, and should have directed a verdict for the plaintiff. These contentions are untenable. The writings are not conclusive one way or the other. The invoices, bills of lading, and some expressions used in the letters are such as might naturally be used in case of sales, but on the other hand the writings contain numerous indications that only an agency arrangement existed, not the least of which is a bond given by the defendant at the beginning of the transactions in which it was recited that the defendant had been appointed agent of the plaintiff and was to faithfully perform the duties of such agency. The oral testimony to the effect that the true relationship of the parties was that of principal and agent was properly admitted and was amply sufficient to sustain the verdict.

A motion for new trial on alleged newly discovered evidence was properly denied. The proposed evidence was entirely immaterial on the question submitted to the jury and could have no bearing on the case except as tending to impeach one of defendant's witnesses. Newly discovered evidence which is merely impeaching in its character does not ordinarily form a ground for the granting of a new trial. Curran v. A. H. Stange Co. 98 Wis. 598, 74 N. W. 377.

By the Court.-Judgment affirmed.

Yawkey-Crowley L. Co. v. De Longe, 157 Wis. 390.

YAWKEY-CROWLEY LUMBER COMPANY, Respondent, vs. DE LONGE and others, Respondents, and ILLINOIS SURETY COMPANY, Appellant.

May 4-May 21, 1914.

Mechanics' liens: Foreclosure: Parties: Cross-complaint: Bond of contractor: Liability of surety to owner and to subcontractors.

1. In a statutory action by a materialman to foreclose a mechanic's lien, the owner, the principal contractor and his surety, and other lienors are all proper parties.

2. In such an action a cross-complaint by the owner, alleging in effect the giving of a bond by the contractor and surety conditioned for the faithful performance of the contract, the failure of the contractor to furnish the necessary materials and labor to complete the contract, that the owner was thereby compelled to provide the same at his own expense, and that the amount of the contract price remaining in his hands after the breach of the contract by the contractor is insufficient to compensate him for the damages sustained, states a good cause of action against the contractor and surety.

3. To entitle a third person to maintain an action upon a contract made between other parties, there must not only be an intent to secure some benefit to such third person, but there must be a promise legally enforceable.

4. Subcontractors furnishing labor or materials cannot maintain an action upon a bond given by the principal contractor to the owner, conditioned for the faithful performance of the contract, where neither the contract nor bond contains any express agreement to pay them, but the entire tenor of both instruments shows that the parties intended that the security should be for the benefit of the owner only.

APPEAL from an order of the circuit court for Dane county: E. RAY STEVENS, Circuit Judge. Affirmed in part, reversed in part.

This is an action to foreclose a mechanic's lien on account of materials furnished to the contractor, the Muskegon Construction & Engineering Company, and used in the construction of a building for the owner, O. F. De Longe. The contractor and the Illinois Surety Company entered into a bond

Yawkey-Crowley L. Co. v. De Longe, 157 Wis. 390.

that the contractor would faithfully comply with all the terms and conditions of the construction contract. The owner and the contractor, on the 1st day of October, 1912, made a contract agreeing that the contractor was to erect a business block and remodel a frame building for the owner. By its terms

it was stipulated that if at any time any lien or claim for labor or material furnished the contractor be established against the owner, the owner should have the right to retain out of any payment then due or thereafter becoming due an amount sufficient to completely indemnify him against such lien or claim; and that the contractor, after all payments were made on the contract, should refund to the owner all moneys that the latter might be compelled to pay in discharge of any lien on the premises. It is further alleged that the contractor has failed to pay certain persons who furnished material and labor in the construction of the building; that the amount due the plaintiff and other persons who filed liens exceeds in amount the sums due the contractor; that the said owner will be obliged to pay a very considerable sum in excess of the amount called for by the construction contract; and that the Surety Company is obligated to pay the claim and lien of the plaintiff. The complaint demands that the rights of all persons having liens upon the premises be adjusted and adjudged, that the premises be sold to satisfy the judgment, and for a deficiency judgment against the contractor and the Surety Company.

The Surety Company demurred to the complaint.

The cross-complaint of the owner alleged the making of the construction contract and the giving of a bond for its faithful performance as alleged in the complaint, and copies thereof were attached. It further alleged that the contractor failed and refused to complete its contract and abandoned the work; that the Surety Company failed to exercise its option of assuring the performance of said contract, although requested so to do; that the owner took possession of the property and