Morehouse v. Voight

BaeNes, J. As a stickler for principle, one Samuel Pickwick, Esq., “bad nothing” on tbe parties to this action. Tbe labor and materials covered by tbe first cause of action were rendered and furnished under such circumstances tbat a jury might well find tbat there was no expectation on tbe part of tbe plaintiff to receive pay therefor, and tbat tbe necessary facts did not exist to.create an implied promise to pay. This part of tbe case was fairly submitted by tbe court to tbe jury and no particular complaint is made about tbe manner of submission. Fifteen errors are assigned and argued. In a trifling case like tbe one before us, involving but a few simple issues, it approaches tbe absurd to claim tbat tbe trial court committed such an array of prejudicial errors. It could hardly do so unless it was attempting to make or break a record. We shall discuss only such of tbe errors, assigned as we think merit some consideration. Tbe plaintiff moved for a reference. In opposing such motion defendant’s counsel stated in open court tbat be would not deny on tbe trial tbat tbe plaintiff furnished tbe items covered by tbe first cause of action or tbat they viere of tbe value claimed. On tbe trial tbe defendant without objection offered proof to tbe effect tbat he bad not received a number of tbe items charged for, and, as to others, that they were not [584] worth the amount charged therefor. The plaintiff then moved to strike this testimony out. The court stated that it would cover the matter in the charge, which it did by instructing the jury in effect that the defendant was bound by the statement referred to and that it must be taken as a verity that' the articles charged for were furnished and were of the value claimed by the plaintiff. This was, in effect, a ruling favorable to the plaintiff on his motion, and we fail to see where he has any cause for complaint. The complaint contained a second cause of action for the recovery of the value of the property alleged to have been wrongfully converted by the defendant, of the value of $9.50. No answer was interposed to this cause of action. The plaintiff offered evidence on the trial in support of the allegations of the complaint, and the defendant without objection offered evidence to the contrary. The issue was submitted to the jury and decided adversely to the plaintiff. The latter now insists that he was entitled to judgment on the pleadings for the amount claimed on this cause of action, and that' it was error to submit any issue in reference thereto to the jury. The right of the plaintiff to recover on this cause of action was litigated on the trial in the same manner and apparently to the same extent that it would have been litigated had issue been joined. Both parties acted on the assumption that an issue was raised in reference to the cause of action. It was apparently litigated on this theory. This being so, this court will treat the case as though the answer had been amended so as to put in issue, the allegations of the complaint. Such has been the practice of this court for a long time. Bowman v. Van Kuren, 29 Wis. 209; Killman v. Gregory, 91 Wis. 478, 65 N. W. 53; My Laundry Co. v. Schmeling, 129 Wis. 597, 614, 109 N. W. 540. The defendant was permitted, against objection, to testify that he received the labor and material charged for in the first cause of action without having any intention to pay therefor. [585] It is insisted that the court erred in receiving this testimony. The court instructed the jury that' any intention the defendant might have had not to pay for the items charged was wholly immaterial, unless it also found that the plaintiff did the work and furnished the materials without any intention on his part of making any charge or receiving any pay therefor. If it be conceded that the testimony was objectionable, a point which we do not decide, the alleged error was rendered harmless by the instruction referred to. The parties to the suit made their preliminary agreement in reference to the sale of real estate and personal property on June 21st. Under it plaintiff had the right to retain possession of the farm and the personal property until the deal was finally consummated. The defendant was permitted to testify that the plaintiff informed him after the contract was made that he might go upon the farm and look after the property he was about to purchase and take possession of all of it except the cows. The appellant insists that it was error to admit this evidence because it tended to vary the terms of the written contract. Of course it did nothing of the kind, and if it did the objection would not be well taken. The plaintiff might waive his rights under the contract, and, as an accommodation either to himself or to the defendant, permit the defendant to take possession of the property which he was about to purchase a few days before the trade was completed, and the defendant might show that fact, if it became material to do so, in a, lawsuit subsequently arising between them. The plaintiff could not invite the defendant onto the farm and put him in possession of it and of various articles thereon and afterwards insist that he had no right to such possession. While there are a number of other errors assigned, we deem it unnecessary to discuss them. We fail to find any error in the record that would warrant a reversal. By the Court. — Judgment affirmed.