#### Schultz, Appellant, vs. Kosbab, Respondent.

*April 10*

May *2, 1905.*

*Pleading: Joinder of causes of action: Promissory notes: Delivery: Statute of frauds: Breach of void contract: Damages.*

' 1. Two counts — one for money bad and received and tbe other upon a note given afterwards in settlement of tbe same claim — are consistent with each other and properly united in tbe same-complaint.

*1582. Where defendant signed a note in settlement of plaintiff’s claim, and thereupon caused it to be delivered to the plaintiff’s attorney in the matter, such transaction constitutes a complete delivery of the note.

3. No damages can be recovered for a breach of a part of a contract when the whole is void because within the statute of frauds.

Appeal from a judgment of tbe circuit court for Sliawano ■county: Joi-iN GoodlaND, Circuit Judge.

*Reversed.*

Tbis action was commenced before a justice of tbe peace, where issue was joined and trial bad and judgment was entered in favor of tbe defendant, from wbicb tbe plaintiff appealed to tbe circuit court. A trial by jury being waived in that court, tbe cause was retried, and at tbe close of tbe trial the court found as matters of fact, in effect: That on June 28, 1902, tbe plaintiff and defendant entered into an oral agreement whereby tbe plaintiff was to purchase tbe defendant’s farm, with all the personal property thereon, together with several tons of bay, already cut and cocked in tbe field, for $4,600, of wbicb $50 was paid down by tbe plaintiff to bind tbe bargain. That as a part of such oral agreement the plaintiff was to look to and take care of tbe bay, and for that purpose would, on June 30, 1902, haul tbe bay into tbe bam, and also make a further payment of $1,000 on tbe farm, and otherwise complete tbe deal. On June 30, 1902, tbe plaintiff notified tbe defendant that be was unable to procure tbe money wberewitb to complete tbe deal and that it was impossible for him to perform bis contract, and then demanded back from tbe defendant tbe $50 be bad so paid down, wbicb tbe defendant refused to repay. July 1, 1902, and while tbe bay was still in tbe field, it ráined upon it and damaged tbe same in tbe sum of $25. That such damage was in consequence of tbe plaintiff’s failure to take care of it as agreed. Thereafter tbe respective parties employed attorneys, who agreed upon a settlement of tbe matter February 27, 1904, tbe plaintiff throwing off some interest; and tbe defendant, not having tbe money, executed a note on that day, wherein, *159for value received, be promised to pay March 5, 1904, to the plaintiffs attorney in the said matter, or order, at the German National Bank of Shawano, $52, with interest, “in settlement of *Ghas. Schultz*account,” signed by the defendant. That the said note was delivered to the defendant’s attorney in the matter with the understanding that the defendant would pay the same before due and within a day or two after its execution, and, if he did not, then the defendant’s attorney was to deliver the note to the plaintiff’s attorney, to whom it was so made payable, which was done March 5, 1904, with the consent of the plaintiff’s attorney, and the parties understood that the matter was thereby settled. A few minutes afterwards the defendant’s attorney expressed his wish that the note should be redelivered and that the plaintiff should sue upon the original claim if at all;‘but no satisfactory agreement was reached, and the plaintiff’s attorney, to whom the note was so made payable, indorsed the note over to the plaintiff on the day it became due, and placed it, so indorsed, in his safe, and subsequently informed the plaintiff what had been done, and thereupon retained the note “for collection without any actual delivery to the plaintiff in person.” The defendant refused to pay the note, and this action was commenced upon two counts — one for money had and received and the other upon the note. As conclusions of law the court found, in effect, that the note was never delivered and therefore was of no effect; that the contract for the purchase of the farm was within the statute of frauds and void; that the plaintiff was entitled to recover the $50 so paid thereon, with interest at six per cent, from dune 30, 1902; that the defendant was entitled to recover as damages for the loss of the hay $25 and interest at six per cent, from the time of the loss; that the plaintiff was entitled to a judgment for the balance so found due and costs; and ordered judgment accordingly. From the judgment so entered the plaintiff appeals.

The cause was submitted for the appellant on the brief of *160*F. A.*Fberlein, attorney, and *M. G.*Eberlein, of counsel, and for the respondent on that of *Dreier & 'Winter.*

Cassoday, C. J.

The complaint alleges two causes of action — one for money had and received June 28, 1902, and the other upon a note given by the defendant twenty months afterwards in settlement of the same claim. The answer takes issue with the first cause of action, and claims that the second cause of action should be abated because it is based upon the same cause of action as the first. The two counts, are consistent with each other, and under the statutes and the repeated decisions of this court they were properly united in the same complaint. Secs. 2646, 2647, Stats. 1898; *Curtis v.*Moore, 15 Wis. 134; *Muzzy v.*Ledlie, 23 Wis. 445; *Whitney v. C. & N. W. R. Co.*27 Wis. 327; *La Pointe v. O’Malley,*46 Wis. 35, 50 N. W. 521; *Bishop v. C.*& *N.*W. *R. Co.*67 Wis. 610, 31 N. W. 219; *Shenners v. West Side St. R. Co.*74 Wis. 447, 43 N. W. 103. Certainly the defendant was in no way prejudiced by the presence of the second count, since it alleges a claim for a considerably less amount than the first count. The only substantial controversy under the second count is as to whether the note was in fact delivered. The findings of fact, as set forth in the foregoing statement,, are to the effect that the defendant signed' the note in settlement of the plaintiff’s claim, and thereupon caused it to be delivered to the plaintiff’s attorney in the matter. Such findings of fact, in our judgment, show that there was a complete delivery of the note in settlement of the plaintiff’s claim, the conclusion of law of the trial court to the contrary notwithstanding.' Such settlement covered what the court found to be the defendant’s counterclaim for damages for the alleged breach of that “part of the oral agreement for the purchase of the farm” whereby the plaintiff agreed to look to and take care of the hay. Besides, under the facts as found by the court, it is well settled that the whole agreement was-*161Void. Sec. 2304, Stats. 1898; *Clark v. Davidson,*53 Wis. 317, 10 N. W. 384; *Kessler’s Estate,*87 Wis. 660, 59 N. W. 129; *Harney v. Burhans,*91 Wis. 348, 64 N. W. 231; *Martin v. Martin's Estate,*108 Wis. 284, 84 N. W. 439. Being wholly'void, tbe defendant could not recover damages for a breach of a paid; of such agreement. Id. Had the plaintiff taken and used the hay, a different question would have been presented.

*By the Court.-*— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff and against the defendant for $52 and interest thereon from March 5, 1904,