Little v. Staples

The following opinion was filed December 10, 1897: MaRshall, J. The complaint sufficiently alleges as facts, -that in 1872 defendants were copartners under the firm name of Hersey, Staples & Bean; that plaintiff had a running account with such firm; that he delivered to the firm a certificate for fifteen shares of corporation stock, under an agreement that the dividends paid thereon should be collected and credited to the plaintiff on the books of the firm, in the running account between the parties; that several dividends were declared by the corporation and were collected on such stock (the amount of each such dividend being particularly set forth); and that defendants thereafter refused to credit the same as agreed upon, or to account therefor. Such facts were ample to • sustain the action for damages for breach of the agreement. So the demurrer to the complaint, as not stating facts sufficient to constitute^ cause of action, was properly overruled. The evidence shows, without dispute, that plaintiff delivered the certificate of stock to defendant Isaac Staples; that he agreed to collect the dividends and credit the same to plaintiff; that dividends were paid on all the stock substantially as alleged in the complaint, aggregating in all about 175 per cent, of the face value of such stock; that Staples accounted therefor as to ten shares of stock, but refused to account for the collections on five shares, giving as an excuse that such shares had been conveyed to Hersey, Staples & Bean. On that state of the . case the question is, Was it error to render judgment against defendant Staples, notwithstanding the entire failure of proof as to a partnership liability? The appellant relies upon the rule that governs in the absence of a statute, that where a suit is brought on [347] ■a joint liability, the failure as to one defendant, in tbe absence of an amendment to the complaint to cure the defect, is fatal as to all. The answer to counsel’s contention is, that sec. 2885, R. S. 1878, provides that, “when it shall appear on the trial of an action, on contract or tort, against several defendants, sought to be charged as jointly, or jointly and severally, liable, that some toere liable and others not, judgment may be revidered against either, or any, of the defendants found- liable to the plaintiff at the commencement of the action.” That covers the subject as plainly as language can do it, and must govern without regard to decisions of courts in jurisdictions where there is no statute. The fact that the verdict was rendered in form against all defendants, and the judgment against Staples alone, is a variance that does not prejudice the appellant. The verdict should have been against Staples alone. The judgment was rendered in accordance with the undisputed facts. All errors not affecting substantial rights, under the statute on the sub: ject, are disregarded, and no judgment reversed or affected by any such error. Sec. 2829, R. S. 1878. Th"e full scope and meaning of such statute is often lost sight of by the profession, else many trifling defects that are proper subjects for amendment as of course in the trial court, and defects that do not in any way affect substantial rights, which are assigned for error and pressed upon the attention of this court with much earnestness and labor, would not be presented here at all. As said by Dixon, 0. J., in Decker v. Trilling, 24 Wis. 610, it is a beneficent statute and cures a multitude of errors, as numerous cases in which it has been acted upon by this court will show. There a joint judgment on a several liability was held cured by the statute. In Gorton v. Bailey, 46 Wis. 633, a defective affidavit to a complaint upon which there was a judgment by confession, there being nothing to impeach the justice of the judgment; and in Atkinson v. Harran, 68 Wis. 405, a judgment for special [348] damages in accordance with, the evidence, though not claimed in the complaint originally or by amendment in the court below; and in Forcy v. Leonard, 63 Wis. 353, a judgment in accordance with the proof, not following the complaint as originally drawn, and without amendment curing the defect; and in Jackson v. State, 91 Wis. 253, a defective instruction that did not prejudice the defendant under the facts of the case, are a few of the many instances where the court has held the defects cured by .the statute. No other question is presented, deserving of special mention. The amounts collected as dividends upon the plaintiff’s stock and not accounted for, as shown by the undisputed evidence, with legal interest up to the time of the trial, appears by computation to be substantially in accordance with the verdict. By the Court.— The judgment of the circuit court is affirmed. A motion for a rehearing was denied February 8, 1898.