Kritser v. Carey

• Decision Date: 10 May 1881
• Citation: 9 N.W. 161,52 Wis. 374
• Parties: KRITSER v. CAREY AND ANOTHER.
• Court: Wisconsin Supreme Court

52 Wis. 374

9 N.W. 161

KRITSER

v.CAREY AND ANOTHER.

Supreme Court of Wisconsin.

Filed May 10, 1881.

Appeal from circuit court, Waushara county.

T. H. Walker and R. L. D. Potter, for respondent.

Ryan & Brown and Waring & Ryan, for appellants.

ORTON, J.

As we understand the record there are only two questions of law before this court in this case: First, whether the amendment of the complaint stated by the plaintiff's testimony in open court, and taken down by the reporter at the time, was sufficient to warrant the trial and verdict; and, second, whether the admission of the testimony of Cady, chairman of the board of supervisors, as to his advice to the plaintiff as to what his contract did not require him to do, was error.

The original complaint for work and labor upon a certain barge may or may not have been sufficient, but there is an allegation that clearly implies that the work was done under a special contract, viz.: “for loss of time caused by the defendants not being ready to receive said barge when built.” The amended answer sets up a certain contract under which it is implied that this work was done, and charges non-performance and damages therefor, and for overpayments thereon. The amendment of the complaint consists of setting out this contract and predicating the cause of action thereon.

After the answer virtually admitting that the work was done under this contract, it is questionable whether any amendment of the complaint was necessary; but if in form proper to be made, it was quite immaterial, as it did not change the issue or require any further answer. The amendment was made on the trial, and to save delay was stated verbally and taken down by the reporter. We can see no objection to this practice if finally the amended complaint is made a part of the record. It was treated at the time as made and incorporated; but, if not formally filed, that omission has been now supplied by the bill of exceptions, which has made the amendment a part of the record, and as the record now stands it will support the verdict and judgment. The testimony of Cady, the chairman of the board, as to his advice in construing the contract, may have been strictly improper. It does not appear from the case how the town stood related to this contract for putting a barge under a bridge, but it would appear as if the authorities of the town might properly direct as to the cutting of the bridge; but his testimony was quite immaterial, and we cannot...