Wisconsin Planing Mill Co. v. Schuda

Lyon, J. I. Upon the controlling question of fact in the case, to wit, Were the Schudas the original or principal purchasers of the lumber in question ? the testimony is in direct conflict. It does not so strongly and clearly preponderate either way as to justify this court in disturbing a finding of the learned circuit judge in that behalf, whether the same be. for the plaintiff, or the' defendants. The con [281] flicting testimony being so nearly balanced, it is important that the plaintiff — the party against whom the issue was found — should have the benefit of all legal testimony which it offered to introduce. During the trial the plaintiff propounded to Lindley Collins, a witness called by it, this question: “Have you ever had any conversation with the defendant Schuda in regard to the claim of the Wisconsin Planing Mill Company?” The court sustained an objection to the question. Counsel for plaintiff then offered to prove by the witness that defendant August Schuda admitted to him that he was bound to pay the plaintiff’s claim herein. The offer was rejected “ as being an offer of evidence in rebuttal and in impeachment, for which no sufficient foundation has been laid.” We do not stop to inquire whether or not an}’- sufficient foundation was laid for an impeachment of Schuda, although he was interrogated on the subject and denied making any such statement to Collins. However that may be, the offered testimony was competent as evidence in chief,— at least against the defendant August, and ought to have been so admitted. Whether such admission is also evidence against Mrs. Schuda, who is a joint owner with her husband of the premises on which.the lien is sought to be enforced, may be regarded as an open question. The rule is thus stated by Prof. Greenleaf, “ In the absence of fraud, if the parties have a joint interest in the matter in suit, whether as plaintiffs or defendants, an admission made by one is, in general, evidence against all.” 1 Greenl. Ev. sec. 174. The soundness of this ruie, as applied to joint tenants, is vigorously questioned by Mr. Freeman in his valuable treatise on Co-Tenancy and Partition, sec. 169. Of course, we are here considering the liability of a joint tenant as distinguished from a tenant in common. We do not determine what the rule is, but hold that the admissions of Mr. Schuda, which were offered'to be proved, would have been [282] competent evidence in chief against him, and hence the rejected testimony should have been received. If the defendants desired to restrict the effect of the testimony to Mr. Schuda alone, it should have been objected to specially on that ground; or the trial court in deciding the case could have limited its effect, if of the opinion that Mrs. Schuda was not bound or affected by it. Bonner v. Home Ins. Co. 13 Wis. 677; Mead v. Hein, 28 Wis. 533, and note. There is no rule of law requiring a foundation to be laid for proof of the admissions of a party to an action against his own interest. The defendant August, having denied making any such admission to Collins, the testimony was offered at the proper time to rebut such denial; and, had it been offered out of the proper order, it should have been received. The court should always exercise its discretion liberally to enable the parties to place before it all testimony within their reach material to the issue. We cannot say what effect the offered testimony, had it been given by so reputable a witness as IVIr. Collins, might have had upon the opinion of the circuit judge. It might have inclined him to think and adjudge that the Schudas were.the original purchasers of the lumber. However that may be, the fact that the rejected testimony was material to the issue, and competent, and that its rejection may have affected the final determination of the case, is fatal to the judgment. It would have been the better practice had the court received the testimony. If finally held incompetent, the court would have excluded it from its consideration, and no harm would result. But, the testimony not having been taken, and it being held that its rejection is a material error, a new trial is the only remedy. See Stewart v. Stewart, 41 Wis. 624. II. The only remaining question to be determined is: [283] Was it correctly held that the mortgage of the brewing company is a lien upon the mortgaged premises for the amount advanced thereon, with priority over any lien for work done or materials furnished in the erection of the building? The mortgage was recorded April 27th; the alleged contract for the sale of the lumber to the Schudas was made (if at all) April 8th; the first lumber was delivered by plaintiff May 2d, and all of it by June 2d; the first money was advanced on the mortgage May 7th, and the last July 31st,—all in 1887. We think the learned counsel for the brewing company have fairly demonstrated, both on principle and by authority, that a mortgage executed, as was this mortgage, in entire good faith, to secure advances to be thereafter made to pay for labor performed upon the building in question and materials furnished therefor, and which advances were so. made, although after the commencement of the building, becomes a lien upon the mortgaged premises from the time of the’execution and recording of such mortgage, and, if it is recorded before the commencement of the building, it will take precedence of liens for labor performed and materials used in the erection of the building. R. S. sec. 3314. The cases cited which are most directly in point are Moroney's Appeal, 24 Pa. St. 372, and Platt v. Griffith, 27 N. J. Eq. 207. Several other cases illustrating the general rules of law affecting mortgages to secure future advances are cited in the brief of counsel. It is not necessary to comment upon or cite them here. It is enough to say they are in harmony with the cases above cited. Counsel for plaintiff relied somewhat upon the case of Dunklee v. Crane, 103 Mass. 471, as supporting their contention that the lien of the mortgage accrued when advances were made, and then only for the sum so advanced. We think the case fails to sustain that doctrine. Under the [284] Massachusetts statutes the lien relates back only to the time when the contract was made under which the lien is claimed. The case onty holds that such a lien has priority over a mortgage executed after the making of the contract under which the lien is claimed. No question of the effect of a mortgage for future advances is in the case. The circuit court has not found whether the mortgage under consideration was executed and recorded before or after the commencement of the building. Counsel for plaintiff maintain that there is some testimony tending to prove the building was commenced before the mortgage was executed. If it was so commenced, should the plaintiff on a retrial be able to establish his right to a lien, such lien will have priority over the mortgage; otherwise not. The question can be determined on the retrial. j By the Gourt.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.