Joeckel v. Joeckel

ORton, J. The main and undisputed facts in this case are that one Leonard Joeckel, her brother, gave to the plaintiff the calf, which had grown to the cow in dispute, and that it was delivered to and received by her with the consent of her father, and to be kept by him for her. There having been 438 no evidence against this statement of fact, it was proper by all authority for the court to direct a verdict for the plaintiff. Lawrence University v. Smith, 32 Wis., 587; Williams v. Porter, 41 Wis., 422; Nicolaus v. Thielges, 50 Wis., 491; Schomer v. Hekla Fire Ins. Co., 50 Wis., 575; Jucker v. C. & N. W. Railway Co., 52 Wis., 150; Sabotta v. St. Paul F. & M. Ins. Co., 54 Wis., 687; Spensley v. Lancashire Ins. Co., 54 Wis., 433. The jury would not have been warranted by the evidence in finding for the defendant, and such a verdict, if found, would have been properly set aside by the court as being clearly against all evidence. The point made by the learned counsel of the appellant, that the calf was received by the plaintiff" in payment for her wages, and therefore belonged to her father, is not well taken, because — First, the evidence shows very clearly it was a gift, and not apurchase; secondly, if it was a purchase in consideration of her services, it was by the consent of her father; and, thirdly, there was no agreement for service proved between Leonard and the plaintiff or her father, and no facts shown from which such an agreement could be implied. The question whether the plaintiff or her mother or any one else made any claim that the cow belonged to Garoli/ne until this claim arose on the suit, was clearly objectionable as being too broad by including others besides the plaintiff, and the offer of the contract between the defendant and his father was properly refused, because irrelevant, and no such contract could affect the right of the plaintiff, she not being a party or having assented thereto. This case is very like Wambold v. Vide, 50 Wis., 456, and, if there is any difference, this is the stronger and clearer case of a gift accompanied by full delivery. See, also, Fonda v. Van Horn, 15 Wend., 631; McCloskey v. Cyphert, 27 Pa. St., 220; Boobier v. Boobier, 39 Me., 406; Tyler on Inf., 122, 242. By the Oowt.— The judgment of the circuit court is affirmed.