#### McGillivray, Appellant, vs. Cremer, imp., Respondent.

*April 5*

May *2, 1905.*

*Appeal end error: Exception to findings of fact: Conclusiveness of finding: Contracts: Evidence: Materiality and relevancy:*Res inter alios acta.

1. Under sec. 3070, Stats. 1898, tlie authority of the supreme court to review findings of fact is limited to those duly excepted to, and hence a finding of fact, unexcepted to, that no contract was made between the parties to the action, is conclusive on the plaintiff’s right of action.

2. Pacts and circumstances merely evidentiary, hearing upon a conclusion of fact that the minds of the parties did not meet upon an alleged contract, are wholly immaterial to any ques- ■ tion which can arise on appeal, in the absence of exception to that finding.

3. It is not error to exclude testimony that plaintiff had given certain instructions to his agent, in the absence of proof that such instructions had been brought to the knowledge of the defendant.

Appeal from a judgment of the circuit court for Monroe county: J. J. Feuit, Circuit Judge.

*Affirmed.*

This action was originally commenced to foreclose a subcontractor’s lien against the property of *Charles H. Cremer*for materials furnished to L. V. Huschka as principal contractor, with an additional cause of action stated in the complaint for recovery against *Gremer*on the ground that on *75the 31st day of December, 1902, after the completion of the building and payment therefor by him to Huschka, said *Gremer,*in consideration that the plaintiff would not proceed to enforce his lien and would extend the time of payment of the sum due him, promised the plaintiff, in writing, that if plaintiff would wait until the 10th or 15th day of January,. 1903, he would pay the'balance due him for materials, and that, relying upon said promise, the plaintiff did forego enforcement of his lien and waited until the 23d day of May, 1903, when $586.17 still remained unpaid and due for said materials from Huschka. The only evidence of any promise-from *Gremer*was a letter of December 31, 1902, asking plaintiff to wait until January 10th or 15th for $500, and balance shortly afterwards, but containing no promise to pay. This was responded to by plaintiff, saying that he would wait,, and would expect J. & 0. Gremer to send him the remainder of his bill, at that time $1,043.21. Huschka had at the-same time built identical houses for both John 0. and Charles Gremer, and John Cremer was in arrears in his payments in an amount not ascertained, but apparently enough, to satisfy this balance due plaintiff. Considerable evidence-was taken as to the information given defendant about plaintiff’s claims and threats — especially whether he had any knowledge whether plaintiff was purposing or threatening to perfect a lien, as in fact he was, or whether he was merely urging expedition in payment by Huschka; defendant claiming that his letter was intended only as a request for extension of time to Huschka by reason of John Cremer’s arrears-in paying him. The court found, as a fact, that the defendant *Gremer*never promised to pay the plaintiff this amount in consideration of plaintiff’s forbearing to file the lien. That finding was not excepted to. Judgment was rendered against the defendant Huschka for the amount claimed, but dismissing the complaint as to the defendant *Gremer.*Erom the latter portion of the judgment plaintiff appeals.

*76For tiie appellant there was a brief by *Pope &*Pope, and ■oral argument by *Ocurl 0. Pope.*

For the respondent there was a brief by *Masters &*Graves, and oral argument by *B. B. Grapes.*

Dodge, J.

The finding of fact that no contract was made, being unexcepted to, is conclusive against the right of action here presented. Our authority to review findings of fact is limited to those duly excepted to. Sec. 3070, Stats. 1898. The various circumstances, such as conversations with Husch-ka and correspondence between appellant and respondent, the evidence as to knowledge or ignorance of plaintiff’s purpose to claim a lien, as also of the situation of the parties, are all merely 'evidentiary, bearing upon the conclusion of fact ■as to whether the minds of the parties met upon a promise by *Cremer*to pay this balance; hence are wholly immaterial to any question which can arise here in the absence of exception to that finding.

Error is assigned because the court sustained objection to •an offer to prove that plaintiff had given instructions to his agent to perfect a lien. This was entirely *res inter alios ■acta,*and,, in the absence of its being brought to the knowl-. edge of the defendant *Oremer,*could have no possible relevancy to the issuable fact whether he did or did not make a promise to pay.

In this aspect, of course,’ the discussion as to the application of the statute of frauds to this, a pi’omise to pay the debt of another, or as to estoppel of defendant to invoke that statute, needs no consideration.

*By the Court.*— Judgment affirmed.