Boyd v. Gore

• Decision Date: 25 October 1910
• Citation: 143 Wis. 531,128 N.W. 68
• Parties: BOYD ET AL. v. GORE.
• Court: Wisconsin Supreme Court

143 Wis. 531

128 N.W. 68

BOYD ET AL.

v.GORE.

Supreme Court of Wisconsin.

Oct. 25, 1910.

Appeal from Circuit Court, Dodge County; Martin L. Lueck, Judge.

Action by E. H. Boyd and another against William Gore, revived on his death against W. C. D. Gore, as executor. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions to dismiss the complaint.

This is an action to recover certain sums which the plaintiffs claim as assignees of one Coller. The defendant by counterclaim seeks to offset against the plaintiffs' claims certain demands which he claims existed in his favor against Coller at the time the assignment was made. The action was tried by the court; trial by jury having been waived. It appeared that October 1, 1906, William Gore, the defendant's testator, leased by a written agreement his farm of 160 acres to one Coller, the plaintiffs' assignor, for one year upon shares; that the lease was modified in certain particulars immaterial here in June, 1907, and when it expired, October 1, 1907, was renewed for the year; that in March, 1908, Coller for some reason vacated the premises, and Gore took possession and placed a new tenant therein. Coller claimed that when he quit possession of the premises the defendant owed him, among other items, the following:

+--------------------------------------------------------------+
                ¦For plowing done in the fall of 1907                  ¦$ 85 50¦
                +------------------------------------------------------+-------¦
                ¦For cash received by Gore for milk belonging to Coller¦80 00  ¦
                +------------------------------------------------------+-------¦
                ¦For chores done by Coller at Gore's request           ¦6 00   ¦
                +------------------------------------------------------+-------¦
                ¦Total                                                 ¦$171 50¦
                +--------------------------------------------------------------+
                

Immediately after quitting the premises, Coller sold his demand for these sums with others to the plaintiffs, and thereupon they brought this action against Gore on the 29th of April, 1908. Gore died September 20, 1908, and on the 28th of November following upon proper motion the action was revived against the present defendant as executor of William Gore's will. The defendant's counterclaim consisted, among other charges, of a charge for Coller's failure to draw out the manure upon the farm during the winter of 1907-08, amounting to $75, and a further charge for a small quantity of pork furnished to Coller of $1.90. The remaining charges are unnecessary to be stated, as they have no bearing upon the issues of this appeal. The trial court found that Gore owed Coller the following sums:

+--------------------------------------------------+
                ¦Money received for milk                   ¦$ 45 00¦
                +------------------------------------------+-------¦
                ¦Amount due for chores                     ¦6 00   ¦
                +------------------------------------------+-------¦
                ¦Amount due for plowing in the fall of 1907¦67 50  ¦
                +------------------------------------------+-------¦
                ¦Total                                     ¦$118 50¦
                +--------------------------------------------------+
                

The court further found that Coller owed Gore for pork furnished $1.90, and disallowed all other claims on the part of the defendant, leaving a balance due to the plaintiffs of $116.60, for which judgment was rendered, and from which judgment this appeal is taken.

R. D. Tillotson, for appellant.

C. E. Hooker, for respondents.

WINSLOW, C. J. (after stating the facts as above).

The appellant makes no objection to the items of $45 and $6 allowed by the court to the plaintiffs for milk money received by Gore and for chores. There are but two items in dispute on this appeal necessary to be considered, namely, the item of $67.50 allowed by the court to the plaintiffs for plowing done by Coller in the fall of 1907, and the item of $75 claimed by defendant as damages for Coller's failure to draw out the manure during the winter, which latter item was disallowed by the court. It was Coller's duty under his lease to do both of these things; hence it is plain that he can neither recover for his plowing nor escape liability for his failure to draw out the manure, unless he was excused from compliance with the provisions of his lease by some extrinsic fact. The trial court found, in effect, that he was evicted by the defendant's testator in March, 1908, and from this premise he concluded that Coller was entitled to recover for the plowing already done in preparation for the season of 1908. He also found that Mr. Gore, the testator, told Coller that he need not draw out the manure in the winter.

Both of these findings were based upon the testimony of Coller detailing conversations which he had with Mr. Gore prior to his death. This testimony was objected to, and was, of course, inadmissible under the provisions of section 4069, Rev. St. 1898 (which excludes the testimony of a party or one under whom he derives title with respect to personal transactions with a deceased person under whom the opposing party claims), unless the fact that Coller's testimony was in the form of a deposition taken before Gore's death...