Gessner v. Roeming

Dodge, J. If there was any credible evidence which, most favorably considered and with the aid of all inferences which might reasonably be drawn, tended to establish that defendant Roeming, on behalf of himself or on behalf of a partnership' consisting of himself and Opperman, requested the furnishing of board by the plaintiff to his partner, the question should have been submitted to the jury. In such case the court has no right to assume to decide it. Leiser v. Kieckhefer, 95 Wis. 4, 69 N. W. 979; Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 141, 88 N. W. 57; Tiborsky v. C., M. & St. P. R. Co. 124 Wis. 243, 247, 102 N. W. 549; [537] Gunderson v. Struebing, 125 Wis. 173, 178, 104 N. W. 149; Zentner v. Oshkosh G. L. Co. 126 Wis. 196, 105 N. W. 911; Glande v. Slaughter, 129 Wis. 642, 645, 109 N. W. 556. If that question, were answered in tbe affirmative, the next, about which, there was practically no dispute, was whether the defendant did furnish board in response to that request. Thereupon would arise an implied contract to pay for that, which was furnished in response to the defendant’s request. We have no aid from the appellant’s brief in ascertaining whether there was such evidence, but examination at large of the printed case leaves no doubt. ■ The plaintiff’s wife testified that the defendant Rooming “asked me for board for his men, himself, and his partner,” and that she named the rates. This request was made under the condition of knowledge by both parties that defendants as partners: had undertaken certain construction work at Horicon, requiring personal attention from one or the other. Immediately after this transaction Rooming, several of their men, and Opper-man came to the hotel and boarded. Rooming paid for his board and for the board of some of the men. Opperman appears to have been in charge of the work and to have stayed in Horicon quite persistently from May until December. He testifies that the work upon which he was engaged was work of the partnership consisting of himself and Rooming; that Rooming was in charge of the finances; that he boarded at the hotel on account of the partnership, and that the partnership owed plaintiff therefor unless it has been paid; also that on other occasions, at other places, his board was paid by Rooming while he was engaged in looking after partnership work. Plaintiff testifies that Roeming requested him not to demand money of Opperman and promised him that the price of the board would be paid. In the light of these extracts from the testimony there surely can be no doubt that the jury, if they had believed it, might legitimately have concluded that this board was furnished for the benefit of the partner [538] ship in response to tbe request of Roeming and upon bis promise to pay tberefor. True, there may be some circumstances in tbe manner of tbe plaintiff’s bookkeeping and tbe like which might tend to support tbe idea that be looked upon it as a personal transaction with Opperman, but such circumstances are but matter of evidence properly to be considered in connection with all tbe rest by tbe jury in tbe process of reaching a conclusion, which was within their province and not witlpn the province of tbe court. There is some comment on tbe fact that Opperman was not served so as to become personally a party to this action; but that fact is no obstacle to tbe rendition of judgment in plaintiff’s favor, in form against tbe entire partnership1, enforceable against tbe partner served and against any partnership property. Subd. 1, see. 2884, Stats. (1898). Both tbe printed case and tbe appellant’s brief fail in important respects to comply with tbe rules of this court. As has already been said, tbe brief is barren of any reference to tbe items of evidence which it is claimed support tbe plaintiff’s cause of action. Rule 10 requires tbe brief of tbe appellant to contain a concise statement “of tbe leading facts or conclusions which tbe evidence tends to prove,” and Rule 12 requires “references shall be made to tbe pages of tbe printed case where tbe evidence relied on may be found.” It is not permissible practice to cast upon tbe members of this court tbe labor of searching at large throughout tbe printed case to ascertain tbe existence or nonexistence of such evidence. Tbe foregoing omissions in tbe brief are emphasized by tbe defects in tbe printed case. Rule 6 requires that tbe appellant shall “print a case containing an abridgment of tbe record, so far as necessary to present tbe questions for decision.” In tbe present instance tbe case contains in exi&nso all tbe testimony, question and answer, with tbe frequent repetition of the same statements, some of them wholly uncon539 tiadieted and others entirely immaterial to any question raised on the appeal. It is padded with wholly nonessential copies at large of certificates, notices, and the like, to which, at most, a reference was justified. Thus has the printed case -been extended over many unnecessary pages and the labors of the members of this court have been multiplied without apparent excuse. It is not in any sense an abridgment. Such flagrant disregard of the rules of this court cannot he overlooked, but must subject the appellant to at least the penalty notified to him by Rule 44, which provides that “no costs shall be taxed for printing any case, supplemental case, or brief unless these rules shall have been complied with.” By the Gourt. — Judgment reversed and cause remanded for a new trial. No costs will be taxed for printing case or brief.