Hunter v. Hathaway

Dodge, J. The counterclaim in this case was obviously grounded on contract. It alleged an agreement substantially in accord with the letter from Sanford to Hathaway, and we construe it as unchanged in this respect by the amendment permitted on the trial alleging that prior to making the lease certain false statements were knowingly made by plaintiff and relied on by defendant. It would not have been proper, under the circumstances, for the court to have permitted an amendment changing the cause of action from contract to tort. Kewaunee Co. v. Decker, 34 Wis. 378; Kruschke v. Stefan, 83 Wis. 373. And indulging, as we must, in all reasonable presumptions in favor of proper action, we must assume that this amendment was inserted not to state a new cause of action founded upon deceit, but to prevent the inference of an intended waiver of the alleged pre-existing contract as a result of the making of the lease. We are confirmed in this view by respondent’s own contention in his brief on this appeal that such was the only purpose of the amendment. We need not, therefore, decide whether a cause of action founded upon said false statements could at any stage have been pleaded as a counterclaim to plaintiff’s cause of action for rent. So viewing the -complaint, it is obvious that the evidence wholly fails to establish any cause of action in defendant’s favor, first, for [624] the reason that there was no word of evidence that Sanford had any authority from plaintiff to write the letter of June 11th, or to make any such promise as is contained therein, nor is there any evidence that plaintiff afterwards assented to or ratified either such letter or promise; indeed, none that she ever knew any such had been written or made. Again, judgment in favor of defendant on the counterclaim fails of any support in the evidence as to damages.. True, it was shown that defendant was inconvenienced in or deprived of the use of some rooms in the house during some period of time each winter, and that he burned a large amount of coal; but he offered the jury no evidence as to the effect of such inconvenience or deprivation upon the rental value of the premises. As to that as an element of damage the jury were left wholly in a field of conjecture, with no evidence to guide them as to the amount which might be allowed therefor. The same is true both with reference to any excessive quantity of coal that might have been consumed or the value thereof,— both are left by the evidence wholly indefinite. Deeper, however, than these defects in the trial is the consideration that any such statement as that embodied in Sanford’s letter of June llth is obviously no more than mere preliminary proposal and negotiation leading up to the ultimate transaction of renting the house; and, since that transaction was reduced to writing in the form of a lease, all previous negotiations or proposals were merged therein. Cooper v. Cleghorn, 50 Wis. 113, 123; Hubbard v. Marshall, 50 Wis. 322, 326; Moulton v. Kershaw, 59 Wis. 316; Lyman v. Robinson, 14 Allen, 242, 254; Lawrence v. Dale, 3 Johns. Ch. 23; Renard v. Sampson, 12 N. Y. 561. The language of the letter itself indicates that the basis on which the parties approached each other was that of negotiation merely. The letter is incomplete as to terms, for no length of rental is mentioned, and the indefiniteness of the terms as to the other house could have been significant of no other purpose [625] than to invite further negotiations. This understanding of the situation is confirmed by the conduct of the defendant, who afterwards looked at the house, “ concluded a bargain,” and rented, and entered into a lease. At that time the work was all done. Defendant did not proceed on the theory that he had an enforceable contract that the heating apparatus should be made all right, but, before making the lease, inquired as to the existing fact. Clearly, therefore, admission in evidence of this letter from Sanford was error; but, being admitted, it had ,no tendency to prove any contract additional to or different from the lease. That instrument being for more than three years, no covenants as to the condition of the house were implied. Sec. 2204, Stats. 1898; Koeber v. Somers, ante, p. 497. There was, therefore, no contract proved to support the counterclaim, and the court should have granted plaintiff’s motion to direct a verdict in her favor. Errors are assigned upon the judge’s charge, which occupies several pages and extends over the rules of law governing the liability of defendant for rent and that of the plaintiff for false representations; covering, too, the conduct of the jury in deciding whether representations were made, whether they were false, etc., and whether they had been waived. Ye need not, however, consider appellant’s criticisms of these instructions, for the court did not submit to the jury any questions to which they could relate. Those instructions are of no materiality except, perhaps, as indicating the mental processes of the trial judge in reaching his decision in favor of defendant upon the counterclaim.- That decision we have already found to be wrong for other reasons, and may forego discussion of the rules of law promulgated in the charge. By the Gourt.— Judgment reversed, and cause remanded for a new trial. BaedeeN, J., took no part.