DeWitt v. Lander

• Decision Date: 18 September 1888
• Citation: 72 Wis. 120,39 N.W. 349
• Parties: DEWITT v. LANDER.
• Court: Wisconsin Supreme Court

72 Wis. 120

39 N.W. 349

DEWITT

v.LANDER.

Supreme Court of Wisconsin.

September 18, 1888.

Appeal from circuit court, Brown county; S. D. HASTINGS, Judge.

This action was commenced in a justice's court to recover the sum of $11 for work and labor done and performed by the plaintiff for the defendant, and at his request. The defendant pleaded in abatement that the cause of action belonged jointly to the plaintiff and another as copartners. He also pleaded to the merits, (1) a general denial; and (2) a counter-claim for damages by reason of the unskillful manner in which such work was performed. The services in question were performed by the plaintiff as a night scavenger. The issues were tried together before the justice, and the trial resulted in a judgment for the plaintiff for the amount of his claim and costs. The defendant thereupon appealed to the circuit court, and the cause was tried in that court on the return of the justice, pursuant to the statute. The circuit court reversed the judgment of the justice as to two items of cost, and affirmed it as to damages and the residue of the costs. The defendant appeals from such judgment. The case is further stated in the opinion.W. J. Lander, for appellant.

J. C. & A. C. Neville, for respondent.

LYON, J., ( after stating the facts as above.)

1. The undisputed evidence given before the justice proves that the contract in suit was made by the plaintiff for and on behalf of himself and one Wickles, who was his partner, and the cause of action belonged to them jointly as such partners. The issue made by the plea in abatement should therefore have been found for the defendant. This error alone is fatal to the judgment.

2. The judgment is erroneous for another reason. An ordinance of the city of Green Bay, (in which city such work was performed,) in force when the contract was entered into, prohibited any person from exercising the calling of a night scavenger in that city without first obtaining a license for that purpose, and giving a bond therein prescribed for the performance of the provisions and conditions of such ordinance. It also provided that any person engagingin any such business without such license should be subject to a fine not exceeding $50. It was proved on the trial that the plaintiff had no such license. If, as the justice found, the contract in suit was made by the plaintiff alone, it was in violation of the ordinance, and therefore unlawful. The plaintiff being obliged...