Cuddy v. Foreman

• Decision Date: 12 October 1900
• Citation: 107 Wis. 519,83 N.W. 1103
• Parties: CUDDY v. FOREMAN.
• Court: Wisconsin Supreme Court

107 Wis. 519

83 N.W. 1103

CUDDY

v.FOREMAN.

Supreme Court of Wisconsin.

Oct. 12, 1900.

Appeal from circuit court, Columbia county; Robert G. Siebecker, Judge.

Action by William T. Cuddy against Albert Foreman. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action to recover $100 paid by plaintiff on a verbal agreement to purchase an undivided one-half interest in a hotel and the furniture therein, on the ground that the agreement was void by the statute of frauds. Defendant answered that plaintiff took immediate possession of the property as owner upon payment of the $100, and retained and enjoyed the property exclusively for a considerable period of time, when it was agreed that the trade should be declared off and that defendant should retain the $100 as damages, and that, pursuant to such agreement, plaintiff redelivered possession of the property to defendant. Defendant further answered that, on or about the time the trade was declared off, plaintiff conveyed to defendant and his partner, William Foreman, a one-half interest in the furniture contained in the hotel and the books and books of account of the firm of Cuddy & Foreman Bros., who had theretofore run the hotel, and also released defendant and said William Foreman from all claims he had against them or either of them, for the sum of $2,500. At the close of the evidence the court directed a verdict in plaintiff's favor for the amount of his claim, upon the ground that there was no proof of a settlement between the parties and release of the claim in suit; that the verbal contract of sale of the hotel property was not in all its terms clearly shown, and that it was not shown beyond dispute that possession of the property was delivered to plaintiff pursuant to the verbal agreement. Defendant excepted to adverse rulings on questions of evidence and to the granting of plaintiff's motion for the direction of a verdict. Judgment was entered in plaintiff's favor, and defendant appealed.Daniel H. Grady, for appellant.

J. H. Rogers, for respondent.

MARSHALL, J. (after stating the facts).

One of the important questions presented by the pleadings was in regard to whether respondent was put in possession of the subject of the sale pursuant to the alleged verbal contract between him and appellant. There was evidence tending to establish the affirmative of that proposition, and that for a period of about 11 days respondent exercised exclusive control of the property. For the purpose of explaining the nature of respondent's possession during such period, he was asked on cross-examination if he did not, during that time, assume to be the owner of the property and offer to sell it to C. W. Kelly. That was objected to as immaterialand the objection was sustained. No reason is perceived why the evidence was immaterial. Plaintiff claimed that he did not take possession of the property, and that the delivery of the keys to him, and other acts indicative of a change of possession in accordance with the verbal contract, were not intended by the parties to have that effect. In that situation, evidence of the conduct of plaintiff, after the happening of the events which point to a change of possession of the property, consistent with such change and inconsistent with his claim that no change in fact took place or was intended, was proper. The evidence was admissible on cross-examination because it bore on the credibility of the evidence of respondent that he did not take possession of the property as claimed by appellant. It was admissible as original, independent evidence, because it tended to explain the purpose of the parties in respect to those acts upon which the claim that a change of possession in fact took place was based; and it was proper to draw out the evidence on cross-examination independent of the examination in chief, the witness being a party; and further, because the only objection made was that the evidence was immaterial. Weadock v. Kennedy, 80 Wis. 449, 50 N. W. 393.

The subject of the competency of evidence of the character of that called for by the question under discussion was considered at considerable length by this court in Roebke v. Andrews, 26 Wis. 311. In delivering the opinion of the court Mr. Justice Paine said, the doctrine rests on the elementary principle, “that statements accompanying any act explanatory of its character are admissible in connection with the act itself.” That principle will be found applied in a great variety of circumstances, as will be seen by an examination of the cases cited in the opinion. In Kelly v. Kelly, 20 Wis. 443, statements of a person as to his purpose in placing a building on land of which he was possessed were held material on the question of whether the building became a part of the real estate. In Meade v. Black, 22 Wis. 241, the plaintiff endeavored to show possession of real property by proof that the person actually occupying it was his tenant. The declaration of the occupant explanatory of his possession was held to be material. In Hollister v. Young, 42 Vt. 403, a party was permitted to show the circumstance of his bringing an action for trespass to realty while he was in possession thereof as bearing on the question of whether his possession was adverse. In Perkins v. Blood, 36 Vt. 273, 282, the circumstance that a person, when applied to to sell certain property of which she was formerly possessed, replied to the plaintiff that she would not sell the property, that she intended her brother should enjoy it as long as he lived, was held admissible as bearing on the fact in issue of whether such person, when she left the property, intended to abandon it. In Blake v. Graves, 18 Iowa, 312, offers made by a person, while in possession of property, to sell it, were held admissible as bearing on the question of whether the possession was that of owner. These illustrations amply show that the evidence ruled out should have been received. It had a material bearing on the question of whether plaintiff was in possession of the property as sole owner. That, obviously, could not have been the case unless there had been a change of possession pursuant to the verbal contract so as to take such contract out of the statute of frauds.

If circumstances which characterize and explain human action, when so closely connected therewith as to fall within the limits of res gestæ, were not permitted to be given in evidence, the judicial search after truth would often fail where common sense and common reason point clearly the way to the desired object. Of course it requires careful attention and the exercise of sound judgment and discretion on the part of a trial judge, to determine when circumstances are so closely connected with the main fact in issue as to characterize and explain it, and on that ground to render proof of such circumstances admissible in evidence. There comes in the judicial function, and when it is exercised the result will not be disturbed unless the ruling appears to be clearly wrong. Errors in such matters will not often occur if the guides laid down in the books are carefully observed. “The principal points of attention are,” says Prof. Greenleaf, “whether the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” 1 Greenl. Ev. § 108.

Evidence was offered and ruled out to show that during the period appellant claimed respondent was in exclusive possession of the hotel property, he conducted the business for his sole benefit and profit. The evidence should have been received. If respondent controlled the property to the exclusion of appellant, and conducted the business as the only person interested therein, those circumstances were clearly admissible as explanatory of the nature of the possession, within the rule above discussed. The evidence was not material as showing an offset to or payment, in whole or in part, of respondent's claim, but it was material in that the circumstance was consistent with appellant's theory that there was a change of possession of the property pursuant to the alleged verbal contract of sale and inconsistent with the opposite theory. It bore directly upon one of the vital questions in issue. Circumstances so closely connected with an act as to be inseparable from it and to point with reasonable clearness to its nature, are under some circumstances the strongest kind of evidence. Any number of witnesses, testifying directly contrary to the truth, pursuant to an agreement upon the false story, may relate it in such a...