Holm v. Colman

Oassoday, J. We perceive no error in refusing to change tbe venue. Tbe defendant Gobnan resided in La Crosse, and tbe defendant Mills in Eau Claire, where tbe action was brought. If tbe plaintiff was entitled to recover against Colman upon tbe cause of action alleged in bis complaint, then be was also entitled to recover for tbe same amount against Mills upon bis guaranty of tbe payment of tbe same ■indebtedness. They were both severally liable for tbe same demand, although upon different instruments, and hénce nould both be included as defendants in tbe same action, at tbe option of tbe plaintiff. Sec. 2609, E. S. Tbe action could not be brought in both counties. Tbe plaintiff necessarily bad tbe option of bringing it in either county. Ibid. Tbe defendant Oobncm was in no position to insist upon a change of venue not desired by bis codefendant. Zeller v. Martin, 84 Wis. 4. We do not think tbe charge of fraud and collusion between tbe plaintiff and Mills has been sustained. [238] There was no error in submitting to the jury for determination the question whether the contract between Mills and Colman for the sale and delivery of the logs to be cut from the lands described in township 42, and upon which this action is brought, was separate and independent of the contract between them, made two months previously, respecting the sale and delivery of logs to be cut from the lands described in township 39. True, the contract for the logs to be cut from the lands in township 42 was wholly or in part in writing, consisting of correspondence between Mills and Colmaría agent; but one of the letters had been lost, and its contents, were not very definitely proved, and much of the details of that contract had been left to implication or inference, and so it became a proper question of fact for the jury. The verdict to the effect that it was a separate and independent contract is certainly supported by the evidence. Even if we were to regard that contract as sufficiently explicit'to call for a construction, as a matter of law, by the court, still we are inclined to thinlc that the court might properly have reached the same conclusion that the jury manifestly did. The court charged the jury to the effect that the evidence was conclusive that if the last contract was a mere modification or enlargement of the first, so that the two should be taken and considered together as an entire contract, then, at the time of the assignment from Mills to the plaintiff, Mills, was indebted to Colman more than the amount of the plaintiff’s claim, and in that event their verdict should be in favor of the defendant Colman; but that, if they found that the two contracts were separate and independent of each other, then, as agreed between the parties, there was, at the time of the assignment, due Mills from Colmazi, on the last contract, $1,333.85, and in that event their verdict should be in favor of the plaintiff for that amount. We perceive no error in the charge. It follows from what has been said that there was no> [239] error in refusing a nonsuit, nor in refusing to direct a verdict or render a judgment in favor of the defendant dolman. Numerous errors are assigned to the admission of testimony. Much of it relates to conversations between the' plaintiff and dolman's agent, with, whom Mills made both contracts, and who made payments to Mills and at least one payment to the plaintiff after the assignment. Ye find no error in admitting such testimony. Nor do we t.binlr there was any error in excluding testimony as to the extent of such agent’s authority, as it was not involved in the case; and besides, the witness had already testified in regard to it. There are other exceptions to the admission and rejection of testimony which do not seem to be of sufficient importance to call for special consideration. By the dowrt.— The judgment of the circuit court is affirmed.