Hewett v. Currier

• Decision Date: 01 June 1885
• Citation: 63 Wis. 386,23 N.W. 884
• Parties: HEWETT v. CURRIER.
• Court: Wisconsin Supreme Court

63 Wis. 386

23 N.W. 884

HEWETT

v.CURRIER.

Supreme Court of Wisconsin.

Filed June 1, 1885.

Appeal from circuit court, Clark county.

R. J. MacBride, for respondent.

James O'Neill and B. F. French, for appellant.

ORTON, J.

The facts are substantially as follows: Long before the twenty-eighth day of June, 1881, the defendant bought the land and commenced improving it, and in the last of May or first of June he commenced building a dwelling-house thereon, and contracted with one Calway either to build and complete it for the sum of $1,600, or employed said Calway to work upon said building and superintend the work of others, for $2.50 per day. As to which was the contract, Calway and the defendant were in direct conflict in their testimony on the trial; Calway asserting the latter and the defendant the former. The deed of the land was executed about the time the building was completed, to Sophronia Currier, the maiden sister of the defendant, about 50 years of age, who came to the state the fall before, but said deed was not recorded until February, 1882, and there is no proof that either Calway or the plaintiff had any notice of it before that time. Some time in June a bill of lumber for the building was purchased of the plaintiff, of $150, but as to who made the purchase, Calway or the defendant, they were also in conflict in their testimony. The defendant was present, however, when it was purchased, or knew about it, and Calway afterwards paid $90 on the lumber, of money he obtained from the defendant, when he informed him that the bill ought to be paid, according to the testimony of Calway, but which fact is denied by the defendant.

The building was completed, and, according to the testimony of the defendant, Calway had been fully paid, and Calway was pecuniarily irresponsible. In the fall of that year, one Chubb, who was the managing clerk of the plaintiff, was directed by the plaintiff to file a lien on the building for the balance of the bill. Chubb, before doing so, called on the defendant, and told him that he had been instructed to file a lien on the building for the plaintiff, and before doing so he thought he would speak to him about it; whereupon the defendant made the reply that if they would wait until after he got through with the trial of a suit then pending with Calway, he would pay the claim. After that suit was through with, Chubb called on the defendant again, and he denied having any such conversation with him. These conversations Chubb reported to the plaintiff, and he assented to the arrangement. Chubb accepted the promise of the defendant to pay the claim on such condition, at the time it was made.

These facts about the promise are supported by the testimony of Chubb and denied by the defendant. No lien was ever filed or prosecuted by the plaintiff on the building. Special findings were submitted to the jury, and were answered as follows: First. “Did the witness Calway have authority from the defendant to purchase the lumber mentioned in the complaint from the plaintiff on the credit of the defendant?” Answer. “No.” Second. “Did the defendant promise the plaintiff's agent, Chubb, that he would pay the plaintiff for the lumber if the plaintiff would forbear to commence proceedings to enforce a mechanic's lien against the building on which the lumber had been used?” Answer. “Yes.” Third. “Did the defendant promise the plaintiff's agent, Chubb, that he would pay the plaintiff for the lumber without reference to whether the plaintiff should forbear to commence proceedings to enforce a mechanic's lien?” Answer. “No.” The jury also found a general verdict for the plaintiff for $61.10.

There were two preliminary questions: (1) Whether the circuit court obtained jurisdiction on the appeal; and (2) whether the case was one for an original trial in the circuit court. It appears, from the return of the justice, that on return-day of the summons the case was called, and R. J. MacBride appeared for the plaintiff and filed a written complaint, and James O'Neill appeared for the defendant, and that, after waiting one hour, and the plaintiff not appearing and offering any proof to sustain the complaint, the justice rendered judgment against the plaintiff for the costs of the action, amounting to the sum of $2.04. Affidavits were presented to show that neither the plaintiff in person, nor Mr. MacBride for him, appeared as stated in the return of the justice, but that Mr. MacBride met the justice in the street and handed to him said complaint. The return of the justice is conclusive on this point until amended by a further return, showing that there was no appearance, or filing of the complaint, at the hour fixed. Section 3763, Rev. St. The authorities cited by the learned counsel of the respondent show this to be the rule.

It is contended by the learned counsel of the appellant that an appeal will not lie from such a judgment dismissing the complaint for want of prosecution. The record does not show the reason why the plaintiff did not appear within the hour to offer his proofs, so that it cannot be said that this judgment is equivalent to a voluntary nonsuit or discontinuance. We know of no reason and have been cited to no authority why the plaintiff may not appeal from a judgment so rendered. The language of the statute (section 3753, Rev. St.) is that “any party to a final judgment rendered by a justice of the peace * * * may appeal therefrom to the circuit court,” etc. There is no exception in the statute, and we can make none. This is clearly a final judgment against the plaintiff in the action, and therefore appealable.

The plaintiff, at the time of the appeal, made an affidavit that he had a valid claim against the defendant, as set forth in the complaint, exceeding the sum of $15, according to subdivision 2, § 3768, Rev. St., so as to give him the right to a trial de novo in the circuit court. The learned counsel of the appellant objected to such a trial, and demanded that the cause be heard on the record, on the ground that when such affidavit was made no complaint had been filed, which the statute clearly implies. But this point is already disposed of by the record return of the justice, that the plaintiff, at the proper hour on the return-day, appeared and filed his complaint, and such complaint constituted a part of the record returned to the circuit court. This is conclusive that there was a complaint filed.

The only exception to evidence offered by the plaintiff, and relied upon in the brief of the appellant's counsel, is to the answer to the question, “When Mr. Currier told you that, what did you say to Currier in reference to accepting or rejecting his proposition?” And the witness answered, “I think I accepted it readily enough.” This answer was objected to, because it was a conclusion of the witness. But no motion was made to strike it out. Was it any more a conclusion than if the witness had said, “I said to him that I accepted it, or that I assented to it?” The acceptance of the proposition, or assent to it, involves but a single expressed operation of the mind, as, I accept, or I consent, and may well be stated as a fact. If a question was, “What was said by you as to refusing an offer?” would the answer, “I refused,” be a mere conclusion? The defendant's counsel could have asked for a statement by the witness of what he said in accepting it, or about accepting it, if he was not satisfied with the answer. But it was immaterial, for the witness had already answered that the plaintiff himself accepted the proposition, and this was not responsive to the question asked, whether the witness Chubb reported to the plaintiff his conversation with the defendant, which question was objected to, and the defendant's counsel did not move to strike out that answer or object to it.

The complaint alleged-- First, that the defendant bought the lumber, and was therefore liable to pay for it; and, secondly, that he promised to pay the plaintiff's demand if he would forbear the filing of a mechanic's lien on the building for it. The first cause of action was virtually negatived by the jury, and the second was sustained. The judgment must therefore stand, if at all, on the second finding. It is contended by the learned counsel of the appellant that this finding is not sustained by the evidence. Without reviewing the evidence on that point further than the above statement of it, we are satisfied that the testimony of the witness Chubb as to that promise of the defendant...