Bartlett v. Clough

Newman, J. The several alleged errors will be considered in the order in which they are numbered, so far as is practicable: 1. The wife of the defendant Olough was sworn as a witness, ostensibly on behalf of the defendant Plummer, and was asked if she had overheard a conversation between her husband and the plaintiff in regard to what the - contract was. Objection to the question was sustained. The plaintiff claimed that Clough and Plummer were liable to him as partners. So far as related to questions arising upon the contract, the defense of both defendants was the same. Clough’s wife could give no testimony on that subject which should be in favor of Plummer which would not at the same time inure equally to the benefit of her husband. The case is ruled by Stewart v. Stewart, 41 Wis. 624. The exclusion of this evidence was not error. 2. The court denied a motion by defendant Plummer to dismiss the action as against him. This defendant, by his answer, admits that he is the owner of the property, and that the plaintiff did the work upon it which is described in the complaint, but claims that a less sum is due, because the plaintiff was hired by the day at the customary wages, and not by the yard, as the plaintiff claims. He also claims to recoup damages for defective work. This answer, in substance, admits a right in the plaintiff to some recovery unless the defendant can prevail on his counterclaim, and as to that the testimony was in conflict. It was no error to overrule the motion. 3. Denial of a similar motion on behalf of defendant Clough. The plaintiff testified that Clough told him that he was a partner with Plummer in the matter of the building, and that he did the work with that understanding, and did not know that he was only Plummer’s agent. True, this was denied by Clough. But it formed an issue of fact, to be decided in the action in the ordinary manner, and was [202] not ground for a compulsory dismissal of the action. A party who holds himself out as a partner may render himself liable the same as if he were in fact a partner, irrespective of the fact. Thayer v. Goss, 91 Wis. 90; Evens & Howard Fire Brick Co. v. Hadfield, 93 Wis. 665. 4, 5. These objections are answered by the observations which have been made with reference to 2 and 3. The testimony being sufficient as against a motion to dismiss, and requiring submission to the decision of the proper trier, it goes without saying that it could be no abuse of discretion to refuse a new trial on account of its insufficiency. 6, 7. Objection to remarks of plaintiff’s counsel in discussing the case to the jury. Perhaps the more objectionable remark was this: “This man from Forest City, Iowa, that runs a bank, and didn’t mean to pay his just obligations,— the question will be, was Mr. Olough his agent?” It is said that these remarks were calculated to excite undue prejudice against the defendant Plummer in the minds of the jury. It is really difficult to see anything very serious in this. It cannot be accepted as a self-evident proposition that to call a man “ a banker from Iowa ” would even tend to excite undue prejudice against him in a St. Croix county jury. Nor does it seem necessarily to overwhelm a man with obloquy to say of him either that he cannot or that he does not intend to pay his just debts. Such cases are not so infrequent in the community as to excite special wonder or remark, or to disturb the equanimity of men of ordinary experience. When said in reference to a party to a lawsuit who does not pay and who resists collection, it does not seem to be a violent or necessarily unjust inference to-say that he does not intend to pay. It cannot be presumed that the defendant was injured by these remarks. 8. That the court erred in submitting special questions to the jury, of its own motion, after the close of the arguments to the jury. This objection seems to arise from a miscon [203] ception of the proper function of the jury in a mechanic’s lien case. Such actions are actions in equity. In actions in equity it is ordinarily in the discretion of the court whether any, or what, questions shall be submitted to the jury. And in such cases the verdict of the jury is deemed advisory merely, and not binding upon the judgment of the court. But in mechanic’s lien cases the statute has made a different rule. It provides that in such actions “ any issue of fact in such action shall on demand of either party be tried by a jury, whose verdict thereon shall be conclusive as in - other cases.” E. S. sec. 3323. It is not clear what the parties to this action desired the jury to determine. Neither party designated any particular issue which it wished to have submitted to the jury. So, perhaps, it was within the province of the court to determine all the issues for itself, without reference to the jury. But the court certainly had the clear right, in the absence of any request by the parties to submit designated issues, to submit to the jury such questions as it deemed advisable, for its own information or assistance, of its own motion. Huse v. Washburn, 59 Wis. 414. Eor it is the function of the court, in a mechanic’s lien case, to determine all the issues, whether with or without the assistance of a jury, where neither party requests specified issues to be tried by a jury 9, 10, and 11. The questions which the court submitted of its own motion were all pertinent to the issues in the action. It was competent for the court to submit them of its own motion, as above shown. 12. Errors in the charge. No serious error in the charge is discovered. But errors in rulings on the admission of evidence or in instruction to the jury are of little importance in an equity case, where, in the end, the court itself must determine all the issues. Huse v. Washburn, supra. 13. The court erred in making findings of fact and conclusions of law after a jury had been called and had returned [204] a verdict. This objection is of kin to No. 8. It arises-from the same misconception of the relative functions of the court and jury in.a mechanic’s lien action. In a common-law action all the issues are to be submitted to the jury, unless that is waived by the parties, and the verdict must cover . and dispose of all the issues in the action. In the ordinary action in equity it is in the discretion of the court whether any, and what, issues shall be submitted to the jury. The verdict should pass upon and dispose of all the issues which are so submitted. In a mechanic’s lien action the court should submit “any issue of fact” which either party shall request to have submitted. It is no part of the duty of the court to submit issues other than those which either party shall request to be submitted. And all issues which are not so submitted are to be decided by the court. Stiles v. Neillsville Milling Co. 87 Wis. 266. The statute does not seem to contemplate that all the issues shall be submitted, to the jury for a general verdict, or to make the case, in the ordinary sense, a jury case, but only such designated issues as either party shall demand to have so submitted, and that the remaining issues in the action shall be tried by the court, either with or without the assistance of a jury, in its discretion. And on such issues the verdict of the jury is advisory merely. Huse v. Washburn, supra. But any issue of fact of which a jury trial is demanded is to be tried in the same manner as issues of fact in actions at law are tried, and the verdict thereon is in like manner conclusive. Bentley v. Davidson, 74 Wis. 420. 14. This is supposed to be designed to raise the point that the judgment does not determine the rights of all the parties to the action. The other lien claimants who were made defendants, Bickard and Stever, did not appear in the action, nor exhibit claims, and are not mentioned in the judgment. It is true that the judgment should determine the rights of all the parties to the action. But a party who [205] neither appears nor asserts his rights cannot demand of the court to explore for his rights,” nor that any other person shall volunteer to assert and vindicate them. He cannot complain if his rights do not appear in the action,— are undiscovered and undetermined. He has had his opportunity,— his day in court. Or perhaps this objection was intended to raise a question of uncertainty in the verdict. The verdict was entitled, “John E. Bartlett v. J. A. Clough and others.” The answer to the first question submitted by the court is to the effect that “ the defendant held himself out to the plaintiff to be the partner of the defendant Plum-mer,” and it' is said that on its face it is uncertain which defendant the jury found to have so held himself out. But that is certain which can be made certain. The verdict is sufficiently certain when construed with reference to the issues in the action and the parties properly before the court. JSTo important error is discovered. By the Court.— The judgment of the circuit court is affirmed.