Kiepert v. Nugent

Winslow, C. J. There is but one question of serious importance in the case, namely, the question of the admissibility of the evidence of the plaintiff’s wife in bis behalf. The defendant, Nugent, bad testified to the contract made with the-plaintiff and to the visits which he made to the plaintiff’s wife and her attorney in his endeavor to bring about a reconciliation, and to the facts as to the final meeting of the parties at the sanitarium when the reconciliation actually took place. He was allowed also to testify that the reconciliation so made was brought about by him. Upon. rebuttal the plaintiff’s-wife was called as a witness, and was allowed, against objection for incompetency, to testify in detail as to her conversations with the defendant, and to deny that Nugent’s efforts; brought it about, and to state why she became reconciled to her husband. This testimony was admitted on the ground that the defendant had been examined as to these transactions with the wife, and that it was thus made proper to call; the wife to deny the defendant’s statements as to his transactions with the wife. The general rule that the wife cannot testify on her husband’s behalf, except as to matters in which she acted as his agent, is freely conceded, but the claim is-made that the situation' justifies and demands a further inroad on the general rule on the ground of the necessities of the case. Whether the general rule is wise or logical is not necessary [130] to be considered. With the single exception above noted, it has been laid down and followed by this court since a very early day. Hale v. Danforth, 40 Wis. 382; Goesel v. Davis, 100 Wis. 678, 76 N. W. 768; Tradewell v. C. & N. W. R. Co. 150 Wis. 259, 136 N. W. 794. If it is to be changed now, we think it should be done by legislative act. The introduction of competent evidence by the defendant as to his interviews with the wife can make no difference with the rule. This is not a case where evidence, otherwise incompetent, may become competent by reason of the introduction of evidence on the subject by the opposing party. Sec. 4070, Stats. . The receipt of this incompetent evidence must be considered as affecting the substantial rights of the defendant, and hence must be held as sufficient ground for a reversal. The evidence of the wife was also received, against objection for incompetency, as to conversations with and admissions made by the defendant on an occasion when she went to defendant’s sanitarium to collect the balance supposed to be due upon the note. As the plaintiff had previously testified that he sent his wife to collect the note, it seems that this testimony was clearly admissible under the exception to the general rule above stated. It is suggested that the defendant cannot be heard to make his defense because, by his own evidence, he convicts himself- of having committed a fraud on the wife in his attempt to procure a reconciliation between the parties. The defendant testified that when he received the $700 from plaintiff April 2, 1907, he gave the plaintiff a sixty-day note for the same (which he produced on the trial) which provided for the payment of the $700, “less services of maker and such advances made at, to, or for said Rudolph Kiepert.” The defendant further testified that on the 25th day of May following, after plaintiff’s wife had consented to come and talk with him at the sanitarium and it was [131] thought that a reconciliation might be effected, the plaintiff told him that he must have a note which would show his wife that he had $600 of his own or she would not he reconciled, and defendant then consented to make a new note for $700, without condition, but with an indorsement of $100 paid March 20th upon the' back, on the condition that this second note was to be exchanged for the original after the reconciliation was effected. It is said that this scheme is fraudulent and vitiates the defendant’s claim for any compensation. We do not think so. The legal principle is that a contract to invade the legal rights of another, either as to person, property, or reputation, is invalid, but there was no such contract here. 1 Page, Contracts, § 401. The contract here, if there was one, was a perfectly legal contract,— in fact, a contract laudable in its purposes so far as both public and private interests are concerned. The reconciliation of all estranged married persons is very much to be desired. There is nothing, therefore, which can be urged as avoiding the contract at the time it was made, nor afterwards up to the very day of the reconciliation. The object was good; it was the duty of both husband and wife to be reconciled, if possible, whether the husband had money or not. The deceit, if there was deceit, was incidental and participated in by both plaintiff and defendant. It made the inducement for reconciliation on the part of the wife a little greater, perhaps, but it infringed none of her rights and did her no legal wrong. We are unable to see how it could deprive the defendant of the fruits of his labors, if in fact there was a valid contract made originally and if in fact it was due to his efforts that a reconciliation finally took place. By the Court. — Judgment reversed, and action remanded for a new trial.