Engel v. Hardt

Taylor, J. We think the court erred in directing a verdict for the defendant. Such direction was made undoubtedly upon the theory that the evidence did not sustain the allegations of the complaint. The complaint was treated as an action to recover for services performed in actually making a loan of $1,500 for the defendant upon the security of a mortgage upon his farm; and because the evidence failed to show that any lospi was in fact made, the complaint was wholly unproved. We think this was too strict a construction of the complaint. The evidence had all been admitted without objection on both sides, and the whole merits of the case were before the court and jury, and the plaintiff should not then have been turned out of court upon a mere technicality arising upon pleadings originally filed in a justice’s court. If [460] it were necessary to amend the complaint to conform to the evidence, it should have been admitted without imposing any terms. It is very clear there could have been no surprise on the part of the defendants as to the nature of the plaintiff’s claim. There never was a pretense on the part of the plaintiff that he had in fact actually procured a loan for the defendant, and this the defendant knew as well before the evidence was in. as afterwards. If he came to trial prepared for anything, he came prepared to meet just such a claim as the plaintiff’s evidence tended to establish; and there was no justice in imposing terms for making an amendment to the plaintiff’s complaint, which would more clearly indicate the exact nature of the plaintiff’s claim. Forbes v. School District, 10 Wis., 117; Meshke v. Van Doren, 16 Wis., 319; Bonner v. Insurance Co., 13 Wis., 677; Fish v. Tank, 12 Wis., 276; Fox River Valley R. R. Co. v. Shoyer, 7 Wis., 365; Knowlton v. Bowron, 7 Wis., 500. In the case of Bonner v. Insurance Co., supra, Chief Justice DixoN says: “ The appellants were bound to take notice that the court possesses the power to amend, and that it would in a proper case exercise it liberally in furtherance of justice, and to prevent unnecessary delay and expense. It was for them to govern their action accordingly, and to prepare for their defense, when good faith and fairness to the opposite party would require them to do so. A fair interpretation and proper observance of the provisions of the statute demand this, and exclude the idea that either party may repose upon technicalities for the purpose of defeating or delaying the action or defense of the other.” These remarks apply with the same force to the case at bar as to the case then under consideration. The defendant cannot, with any show of fairness, claim that he supposed the plaintiff made a claim against him for having in fact procured a loan of $1,500 for him. He knew such was not the fact; and he also knew that the plaintiff did not claim to have done so. [461] He knew that the plaintiff's claim was for services in endeavoring to get a loan for him, and which he failed to procure for him because, as plaintiff alleged, of his failure to attend and give the security at the time fixed for doing so. That was the case presented by the plaintiff’s evidence, and the defendant undertook to meet that claim by his evidence, and when the evidence was all before the court it should have been disposed of on its merits, and not upon a technicality which could not have misled any one. Whether upon the proofs the plaintiff was entitled to recover, was a question for the jury and not for the court. If the plaintiff had in fact procured a man willing to loan the money to the defendant, and had the money ready .to make the loan on his security, and upon the terms agreed upon between the defendant and the plaintiff, and the loan failed because the defendant did not attend to give the mortgage and receive the money on the day fixed by the parties for that purpose, the plaintiff would certainly be entitled to receive what his services were reasonably worth for the work done, unless he waived his claim for such services by continuing the agreement to procure such loan for the defendant, notwithstanding his failure to attend at the time fixed. The other point raised by the learned counsel for the respondent as a reason for sustaining the judgment, viz., that it might be inferred from the evidence that the time fixed for the defendant’s appearance to deliver the security and receive the money was suggested as a convenient time, and not as an essential part of the agreement, upon the nonful-filment of which on the part of the defendant the plaintiff was to be released from all further efforts to procure the loan for him and he be entitled to receive compensation for his services if on that day he had the money ready for the defendant and he did not appear to receive the same,— was also a question for the jury and not for the court on the evidence. We think the complaint was sufficiently specific to [462] entitle the plaintiff to sustain his claim to compensation for labor and services in procuring the money, ready to be loaned to the defendant, upon the security and terms agreed upon between the plaintiff and defendant, without showing that the loan was in fact completed, if the evidence further shows that it was not completed by reason of the negligence of the defendant in not appearing to receive the same at the time fixed for that purpose. If the allegations of the complaint were not strictly applicable to that state of facts, it was error on the part of the court to refuse to permit the plaintiff to amend his complaint unless he complied Avith the terms imposed by the learned circuit judge. All the evidence being before the court, the case should have been decided upon its merits, disregarding any technical variance between the allegations of the complaint and the proofs. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.