Gilchrist v. Brande

• Decision Date: 31 May 1883
• Citation: 58 Wis. 184,15 N.W. 817
• Parties: GILCHRIST v. BRANDE, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

58 Wis. 184

15 N.W. 817

GILCHRIST

v.BRANDE, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed May 31, 1883.

Appeal from circuit court, Kenosha county.

This is an action to recover the amount of certain moneys alleged to have been collected by the defendants while doing business as copartners and lawyers, claim collectors, loan and real estate agents, and makers of abstracts, at Kenosha, under the firm name of Brande & Thiers, on certain securities alleged to have been left by the plaintiff with them for collection and remittance or reinvestment, and which moneys, as alleged, the firm collected and held for the use of the plaintiff, but neglected to remit or reinvest. The complaint is upon two counts,--one for a balance of $2,550 collected prior to March 20, 1880, and interest, and the other, $1,700 collected prior to April 1, 1881, and interest. Brande separately answered, and admitted the existence of the partnership from March 14, 1879, to August 1, 1879, but not thereafter; alleged the dissolution of the firm July 31, 1879, and due notice and knowledge thereof to the plaintiff, and specifically denied the several allegations of the complaint, and alleged, upon information and belief, that the collections referred to were made by Thiers after the dissolution of the firm, and paid over and accounted for by him to the plaintiff.

At the close of the plaintiff's testimony Brande's counsel moved for a nonsuit, which was denied, and the defendant excepted, and thereupon he asked for a special verdict. At the close of all the testimony the court, in pursuance of that request, submitted to the jury twenty special questions, which, with the answers, were, in effect, that before August 1, 1879, the defendants, as copartners, agreed to collect the securities in question for 1 per cent. commissions; that Thiers, assuming to act for the firm, collected thereon, between March 14, 1879, and March 20, 1880, $3,241.10, and between March 21, 1880, and June 30, 1881, the further sum of $1,629.67; that in pursuance of the agreement of March 14, 1879, and the letters of Thiers, assuming to act for the firm, the plaintiff remitted to Brande & Thiers for investment $3,000; that neither the firm nor either of the defendants ever remitted or accounted to the plaintiff for any more than $1,018.01; that the plaintiff never had any notice of the alleged dissolution of the firm before the receipt of the letter of July 28, 1881; that the defendants continued to transact business for their joint profit after the alleged dissolution, and continued thereafter to occupy the same office and keep their books in the same manner as before; that the commissions charged for the collection of these securities were carried on the book of the defendants to the same accounts and in the same manner, after the alleged dissolution, as were similar charges before; that the plaintiff did not leave the securities with the defendants at the date of the receipt; that Brande did not then know of the receipt, nor did he prior to August 1, 1879, but did prior to the trial; that the plaintiff had done other business with the firm before August 1, 1879, besides the collection of $93 and the drawing a deed; that the firm was not dissolved on or about August 1, 1879, but notice of dissolution was published in a Kenosha paper on or about August 7, 1879, and for three successive weeks thereafter; that Brande had knowledge of the correspondence between the plaintiff and Theirs before July 20, 1881; that the plaintiff sent some of the securities mentioned before March, 1880, and the securities were sent at different times. The jury also found generally for the plaintiff, and assessed his damages at $4,183.85. Thereupon the defendant Brande moved to set aside the special verdict for the reasons that the first, sixth, eighth, eleventh, twelfth, thirteen and a half, fourteenth, fifteenth, sixteenth, eighteenth, and nineteenth interrogatories were each answered contrary to law and against the evidence, and because on the undisputed evidence each should have answered to the contrary; and because the findings and answers were inconsistent and contradictory; and because the verdict does not find facts necessary, important, and material to the issue, nor all the issues; and because of the several objections and exceptions taken on the trial and noted in the minutes; and because of the refusal to submit questions propounded, and other errors, irregularities, and exceptions appearing in the minutes and on the verdict.

May 10, 1882, the court overruled the motion herein made by defendants' attorney to set aside the verdict of the jury herein, and granted plaintiff's motion for judgment for $4,183.85; to which ruling the defendant S. Y. Brande, by his counsel, S. B. Van Buskirk, then and there duly excepted.

May 27, 1882, defendant Brande filed his exceptions to the conclusion of law in this case, directing judgment for the plaintiff therein, made against him of the sixteenth of May, A. D. 1882. Judgment was entered May 20, 1882, as of May 16, 1882, for damages, $4,183,85; costs, $99.77.

May 29, 1882, defendant Brande excepted to the judgment rendered and entered in this action, and to each and every part thereof, which exception was duly filed in said cause.

On July 13, 1882, Finches, Lynde & Miller were substituted as the attorneys of defendant Brande, in place of S. B. Van Buskirk, Esq.

This appeal is brought from the final judgment herein.

Quarles & Stebbins, for respondent, Peter A. Gilchrist.

Finches, Lynde & Miller, for appellant, Samuel G. Brande, impleaded, etc.

CASSODAY, J.

Numerous errors have been assigned, and still more numer ous exceptions taken. It may be inconvenient to notice them all in detail or in the order designated.

1. It appears from the record that after 12 men were called into the jurybox the plaintiff struck one name from the list, when another juror was called, and then the defendant struck one from the list; that the striking of the jury proceeded until the plaintiff had stricken off two names and the defendant three, whereupon a new juror was called and the list passed to the plaintiff's attorneys, whereupon they struck off one name therefrom. Thereupon the defendant objected to the calling of another juror, for the reason that the panel was then complete. The objection was overruled by the court, and to which ruling and decision the defendant then and there excepted. Was this ruling error? The statute provides that “each party shall be entitled to three peremptory challenges from a full panel of jurors called in the action. The challenges shall be made alternately by the parties, one at a time, the plaintiff beginning; and when either party shall decline to challenge in his turn, he shall be deemed to have waived each time one challenge.” Section 2851, Rev. St. This statute is unusually explicit and needs no exposition. The plaintiff was the first to challenge, as required by the statute. Had the challenge proceeded alternately, as prescribed, the plaintiff would first have exhausted his challenges. The record does not show, except by mere inference, that the plaintiff declined to challenge in his turn. The inference, however, is just as strong that the defendant struck the third time out of his turn. The record fails to show why the defendant had stricken off three jurors, when the plaintiff had only stricken off two. Counsel insist that the plaintiff once declined to challenge in his turn, and that he thereby waived his right, under the statute, to any further challenge, after the defendant had exhausted his challenges. But the record fails to show affirmatively that such was the fact, and discloses no objection to any challenge by the plaintiff. It does show that after the plaintiff had stricken two names from the list, and the defendant three, a new juror was called, whereupon the plaintiff struck one name from the list. But it does not appear that the defendant made any objection to the striking of such name from the list. Having failed to make such objection, he is in no position now to claim that such name was not rightfully stricken off. True, if the plaintiff had once declined to challenge in his turn, he thereby waived one challenge. But that did not prevent the defendant from waiving any objection to the subsequent exercise of that right by the plaintiff. By not making such objection at the time, the right to insist that such challenge was exercised out of turn comes too late. The objection made to calling another juror, after the plaintiff had thus stricken off the third juryman, “for the reason” assigned, “that the panel was then complete, was in effect insisting upon the cause being tried with the juryman on the panel who had thus been stricken off by the plaintiff. To compel the plaintiff to try the cause with such stricken juryman upon the panel, knowing the fact that he was objectionable to the plaintiff, might tend to prejudice such juryman against the plaintiff. Hence, if objection were to be made, it should have been to such exercise of the right of challenge by the plaintiff, instead of being made to the juryman leaving the box after he had thus been challenged without objection. For the reasons given we are clearly of the opinion that the objection taken was untenable.

2. It appears that, during the statement of certain objections to evidence by counsel for the defendant, the judge before whom the cause was being tried made some remarks, in answer to such objections, which the reporter did not take down, and when the counsel for the defendant called the attention of the court to the fact that the reporter was not taking down such remarks, the judge declared that it was not the practice in his circuit to require the reporter to take down all he said during the progress of the trial which had no bearing upon the questions of law or fact being tried. And thereupon the counsel for defendant insisted that...