Gaston vs. Owen. then paid $50 of said sum, and promised to pay the remainder during the succeeding month, but has failed to pay any part thereof. Answer, a general denial. Plaintiff's evidence tended to show the following facts: One McLaughlin, who was running a logging camp for McCann, purchased the hay of plaintiff for use in the camp, and made out for plaintiff a written statement addressed to McCann, showing the quantity of hay bought and the price agreed upon. McCann, on presentation of this statement, told plaintiff that defendant was to pay it, and went with him to see the latter, who, upon being assured by McCann that it was all right, wrote on the back an order upon himself for its payment, which he directed McCann to sign, paid plaintiff $50 upon the same, and promised to pay the balance the following month. It also appeared that at this time, McCann was putting in saw logs for the defendant on Chippewa river, at a certain price per thousand, and that defendant had agreed to furnish supplies as needed for that purpose, deducting the cost thereof from the contract price; but no evidence was given or offered tending to show the state of accounts between McCann and defendant at the time of the latter's promise; neither was any proof made of the allegation in the complaint, that, in consideration of such promise, McCann had been released. On defendant's motion, judgment of nonsuit was entered; from which the plaintiff appealed. For the appellant, a brief was filed by Bailey & McCaslin, and the cause was argued orally by W. F. Bailey. Assuming that the circuit court proceeded upon the ground that defendant's promise was void under the statute of frauds, they cited, upon that point, Gill v. Rice, 13 Wis., 613; Beard v. Converse, 5 Cent. Law Jour., No. 12, p. 271; Stokes v. Moore, 1 Cox, 219; Clason v. Bailey, 14 Johns., 484; 3 Parsons on Con., 6-8; Bluck v. Gomperts, 7 Excheq., 862; Wilford v. Bealey, 3 Atk., 503; Propert v. Parker, 1 R. & M., 625; Gaston vs. Owen. James v. Patten, 8 Barb., 344; Johnson v. Dodgson, 2 M. & W., 653. For the respondent, a brief was filed by Henry H. Hayden and Wm. Pitt Bartlett, and there was oral argument by Mr. Hayden. They contended that there was no evidence of any indebtedness of defendant to McCann, nor of any release of McCann by the plaintiff; that these facts were essential to the novation alleged; and that, in their absence, defendant's promise was void under the statute. R. S., ch. 107, sec. 2; McConnell v. Dodge, 10 Wis., 111; Mallory v. Gillett, 21 N. Y., 413; Nelson v. Boynton, 3 Met., 396; Young v. French, 35 Wis., 116; Osborn v. Farmers' L. & T. Co., 16 id., 38. RYAN, C. J. The question on the statute of frauds, discussed in the briefs of counsel, does not appear to arise in this case. As suggested on the argument by the learned counsel for the respondent, the case made by the complaint is clearly one of novation, going upon the substitution of the respondent for McCann, as debtor to the appellant. The complaint contains the averments material to such a case, and excludes any other liability of the respondent. It avers that, at the time of the substitution, the respondent was indebted to McCann in as large an amount as McCann was indebted to the appellant. This was a material averment. For it is upon the ground that the debtor assumes no new liability, but only changes his creditor, promising to pay an old debt to a new creditor, the creditor of his creditor, that the doctrine of novation rests. And it was necessary to the appellant's case to give evidence in support of his averment that the respondent, at the time of his promise, was indebted to McCann in the amount which he promised to pay to the appellant, satisfying pro tanto an existing debt to McCann. Addison on Contracts, 272-277; 1 Parsons on Contracts, 217-222; Story on Contracts, §§ 479-488. Gaston vs. Owen. We cannot hold that there was any evidence to go to the jury on the point. It was in proof that there was a subsisting executory contract between McCann and the respondent, by which the latter might probably become indebted to the former; but no evidence was given tending to show the relations of the parties or the state of their account, on foot of the contract, at the time of the transaction. It is true that the respondent made a payment for McCann to the appellant; but that could raise no presumption of a present debt larger than the payment itself; hardly of that. It appears also that the respondent promised to pay the balance in suit here, at a future day. Any presumption from the promise would be, to say the least, ambiguous; as much perhaps against, as for, the recognition of a present debt to McCann. We cannot think that it would be safe to submit such a promise to a jury, as a fact tending to show a present debt. The same ground might be open in every case to uphold a voluntary promise to pay the debt of another. These are the only circumstances in evidence which could have any possible bearing on the indebtedness of the respondent to McCann. And none of them, nor all together, would be sufficient to support a finding of the fact. We must therefore hold that the nonsuit was properly granted. Whether or not the appellant might then have amended his complaint, so as to make a case on the order of McCann, or whether he could recover against the appellant on the order, are questions not now here. The appellant did not ask to amend; and he had no right to go to the jury on a case essentially different from his pleading. The difficulty was not a variance. It arose from proof tending to show one contract, under a complaint setting up an essentially different one. Andrews v. Powers, 35 Wis., 644; Young v. Lego, 36 id., 394; Pierce v. Carey, 37 id., 232. By the Court. firmed. The judgment of the court below is af Latimer vs. Morrain, imp. LATIMER VS. MORRAIN, imp. PRACTICE. (1) What reviewable on appeal from judgment. (2) Vacating judgment after term. (3) How objection to be taken to taxation of costs. 1. Appeal from a judgment of foreclosure does not bring up for review an order refusing to modify the judgment by striking out amounts allowed for costs and solicitor's fees. 2. The trial court cannot vacate its judgment after the expiration of the term, for error of law or fact committed in rendering it. 3. A party served with notice of taxation of costs against him, should appear before the taxing officer and object to items claimed by the opposing party which he regards as erroneous, but which do not exceed the jurisdiction of the officer to allow, if he wishes afterwards to urge such objection before the court. APPEAL from the Circuit, Court for Eau Claire County. The case is stated in the opinion. The appeal was submitted for the appellant on the brief of J. F. Ellis. For the respondent, a brief was filed by Bailey & McCaslin, and there was oral argument by Mr. Bailey. COLE, J. This is an appeal from a judgment of foreclosure rendered on the 16th of May, 1876. There is no bill of exceptions in the case, and we can therefore only review errors which appear upon the record. We fail to discover any error in the judgment roll which should work a reversal of the judgment. It appears that the defendants were personally served with copies of the summons and complaint, but made no appearance in the action. The judgment rendered is certainly warranted by the complaint, and it will be found to be a few cents less than the amount actually due on the mortgage, when the interest is computed according to the correct rule. We learn from the briefs of counsel and the printed case, rather than from the record proper on the appeal, that the Gans vs. The St. Paul Fire & Marine Ins. Co. premises were sold upon the judgment on the 3d of July, 1876, and the sale confirmed on the 3d of August thereafter; that at the September term of court, a motion was made to modify and correct the judgment, by striking therefrom the amount allowed for solicitor's fees, and certain items of costs taxed; and that this motion was denied. The appeal, however, is not from that order; and if it were, the law is well settled in this state, that the circuit court could not vacate the judgment after the term, for error of law or fact committed in rendering it. It would seem to be unnecessary to refer to the decisions upon this point. On the record we must presume that the court properly allowed the amount of solicitor's fees stipulated in the mortgage to be paid in case of foreclosure. In respect to the taxation of costs, there is nothing in the record to show that either of the defendants appeared before the taxing officer and objected to the taxation of the items which are claimed to be erroneous, as they should have done. Cord v. Southwell, 15 Wis., 211; Perkins v. Davis, 16 id., 470. It is obvious that the judgment must be affirmed. GANS VS. THE ST. PAUL FIRE & MARINE INSURANCE COMPANY. FIRE INSURANCE. (1) When policy voidable after loss. (2) How insurer estopped. (3, 4) Notice to agent who writes policy is notice to insurer. Attempts to evade this rule, by terms of policy. (5) Parol waiver of conditions. ESTOPPEL: PLEADING. (2) Facts constituting estoppel. (6) When estoppel, not pleaded, may be shown. 1. A policy of insurance against fire which provides in terms that it shall be void if the building insured shall become unoccupied without the consent |