Maher v. Davis & Starr Lumber Co.

Cassoday, J. The defendant took the requisite steps to secure the change of the place of trial from the county of Pepin to the county of Eau Claire, where the defendant was located. The cause having been commenced in the wrong county, the defendant, under the statutes, had the absolute right to the change; and hence the court would have had no right to retain the cause on the ground that the convenience of witnesses and the ends of justice would be thereby promoted. R. S. secs. 2621, 2624; Van Kleck v. Hanchett, 51 Wis. 398; Meiners v. Loeb, 64 Wis. 343. It follows that such change was properly made by the circuit court for Pepin county. In fact it was finally made, as recited in the order, by the consent of the plaintiff’s attorney, although he had at first opposed the application on the ground that the convenience of witnesses and the ends of justice would be promoted by retaining the cause. Subsequently the plaintiff, upon proper showing, moved the circuit court for Eau Claire county to change the venue back to Pepin county, on the ground that “ the convenience of witnesses and the ends of justice would be promoted by the change;” and the same was changed • accordingly. Such ■change rested in the sound discretion of that court. R. S. sec. 2622, subd. 3; Postel v. Weinhagen, ante, p. 302; Challoner v. Boyington, ante, p. 217; (Cartright v. Belmont, 58 Wis. 370. Being discretionary, and it not appearing that there was any abuse of such discretion, we must hold' that such change was properly made. The contention is that the plaintiff, by his opposition to. the first change and then finally giving his assent thereto, had waived his right to have the venue changed back to Pepin county on the ground mentioned; but, under the statutes and the cases cited, the court was precluded on the first motion from considering the question of the convenience of witnesses and the ends of justice, and hence that question. was not involved in the first order. . [533] . We find no reversible error in the admission of evidence as to the prices to be paid for the hauling. There was no dispute or controversy as to such prices. The defendant paid all it had agreed to pay under the contract, except the twenty-five cents additional for every 1,000 feet mentioned therein. dSTo judgment is to be reversed or affected by reason of errors which do not affect the substantial rights of the adverse party. R. S. sec. 2829. The evidence appears to be sufficient to sustain the verdict. The case was submitted to the jury on the theory that the plaintiff could not recover the twenty-five cents additional for each 1,000 feet, unless the delay in completing the job was in consequence of the defendant’s refusal to furnish the wagon, or its failure to furnish the requisite facilities for unloading the lumber in the yard. The testimony on the part of the plaintiff tended to prove that he at first procured the wagon from the defendant, and that the defendant thereafter caused the same to be taken away against his protest, but subsequently promised, from time to time, to send the wagon back, but failed to do so; that the defendant had insufficient help in the yard, and consequently the plaintiff was at times delayed several hours in unloading. The contract expressly provided that the lumber should be graded and scaled by the defendant’s authorized representative at the yard. The charge of the court appears to have fully and fairly presented the case on both sides. The mere fact that it stated the claims of the respective parties is no ground for exception. The trial judge said: “The contract provides that it be unloaded in the yard, on piles to be designated by the defendant. The custom of the yard, it seems, was to have this lumber scaled as unloaded and piled, so they, might know how much each man hauled, and to regulate his pay accordingly. Of course,‘more or less delay would result [534] necessarily, probably, in transacting the business, but the plaintiff claims this delay was unnecessary and unreasonable;” and so- he left it to the jury to determine whether the delay, if any, was or was not unnecessary and unreasonable. In regard to the plaintiff’s claim that, after the making of the contract, he procured the wagon, and that the defendant took it away and agreed to return it to his place, the judge charged the jury, among other things, that : “Now, if you find as a fact that the defendant, by Mr. Nelson, as the agent, did agree to deliver a wagon,— not agreed to deliver it here at the yard, but agreed to take it up to •the home of the plaintiff,— and the plaintiff relied upon such promise, and expected that wagon to be so delivered, and their failure to deliver that wagon was the reason why he could not deliver this lumber within the time (November 1st), with no fault on the part of this plaintiff, that would probably be sufficient excuse for not delivering the lumber by November 1st, and entitle plaintiff to the twenty-five cents extra. But, if there was no agreement to deliver the wagon at the plaintiff’s home, but he was told and given to understand he could have one there by hauling it home, then I charge you, as a matter of law, it was his duty to accept a wagon there and haul it home. He should have taken it at the yard unless there was an express agreement to the contrary that it should be hauled to his house.” We perceive no error in such portions of the charge. It was certainly competent to thus modify the written agreement by parol. The court then charged the jury, in effect, that the plaintiff could recover nothing for the use of the wagon ; and then said: “ I cannot allow any recovery here, except the twenty-five cents per M. extra; and, of course, whether you will allow that or not will depend upon whether the plaintiff was prevented from filling his contract by the [535] wrongful acts of the defendant,— that is, by the failure of the defendant to do its duty under the contract.” ¥e find no reversible error in the record. By the Court. — The judgment of the circuit court is affirmed.