Kuenster v. Woodhouse

• Decision Date: 22 November 1898
• Citation: 101 Wis. 216,77 N.W. 165
• Parties: KUENSTER ET AL. v. WOODHOUSE ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 216

77 N.W. 165

KUENSTER ET AL.

v.WOODHOUSE ET AL.

Supreme Court of Wisconsin.

Nov. 22, 1898.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by Charles Kuenster and others against Peter Woodhouse and others. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

Bardeen, J., dissenting.

Bushnell, Watkins & Moses, for appellants.

Lowry & Clementson, for respondents.

CASSODAY, C. J.

It appears from the record that during the times mentioned the defendants were co-partners and doing business as bankers at Bloomington, Wis., and the plaintiffs were co-partners and doing business as shippers of live stock and produce at Glen Haven, Wis., and kept a bank account at the bank of the defendants; that May 18, 1895, the plaintiffs commenced this action to recover an alleged balance on such bank account, March 20, 1895, of $519.33, over and above all set-offs, and over and above all amounts withdrawn by the plaintiffs from the bank of the defendants, and demanded judgment for that amount, with interest and costs. The defendants answered by way of admissions, denials, and counter allegations, and, among other things, alleged a counterclaim for a balance due them on such bank account March 1, 1895, of $541.24, over and above all set-offs and payments, and demanded judgment for that amount, with costs. At the close of the trial the jury returned a verdict in favor of the plaintiffs, and assessed their damages at $517.26. From the judgment entered thereon, with costs, the defendants bring this appeal.

It is conceded that November 17, 1894, the plaintiffs drew on their check on the bank of the defendants $608.40. In addition to that it is claimed by the defendants that they paid to the plaintiffs on that day from the bank $1,000 cash, and charged the same to the plaintiffs in their account with the bank, but received no check or other voucher for the same. The single question in issue on the trial was whether the plaintiffs did or did not receive the $1,000 from the defendants November 17, 1894, so charged in the account which the defendants kept with the plaintiffs as having been paid to them on that day. The testimony is voluminous. There is plenty of evidence to support the verdict. The facts were for the jury, and we shall not review the testimony. Whether there were any errors committed upon the trial remains to be considered.

1. The defendants contend that on the day named the plaintiff Charles Kuenster was at the bank of the defendants and wanted to get $1,000, and that the defendant Patrick Bartley told him that he might have that amount, and thereupon passed over to him $1,000 in currency; taking no voucher therefor, but simply making a memorandum thereof on a slip of paper. Charles Kuenster flatly denies having received any such sum on that day, or any sum for which he did not give the check of his firm. Of course, the credibility and business habits of Patrick Bartley as well as Charles Kuenster were necessarily involved in the determination of the fact so in issue. Error is assigned because, after excluding certain testimony, and striking out certain other testimony, of Charles Kuenster, as a witness in behalf of the plaintiffs, which had been admitted without objection, tending to prove that Patrick Bartley had been drunk on several occasions, time and again, he was allowed to testify that he would not say whether Patrick Bartley was drunk or sober on November 17, 1894; and thereupon counsel for defendants stated, in effect, that, if the court thought it a proper matter to be inquired into, then the defendants would not object to a full inquiry as to the habits of Mr. Bartley. Subsequently Patrick Bartley testified in behalf of the defendants to the effect that the day in question was for him a very busy day; that he did not go to dinner on that day; that he was not intoxicated on that day; that he was not drinking on that day,--not that afternoon; that he did not taste anything but water; that he did not know what time in the day he began drinking; that he did not recollect who he was drinking with on that day; that he had none of the symptoms of a strictly temperateman or a Prohibitionist; that he was not intoxicated when Charles Kuenster came into the bank that day, and had not been drinking a good deal that day before he came in; that he had not been out of the bank after he came into it on that day, and could not have been drunk that forenoon; that he did not recollect being intoxicated, in the sense of being drunk; that he did not know,--that he might have been under the influence of liquor, to a greater or less extent, that afternoon. Subsequently the court ruled that the plaintiffs might, by way of rebuttal, prove that Patrick Bartley habitually used intoxicating liquors during the month of November, 1894; and thereupon a witness on behalf of the plaintiffs was allowed to testify to the effect that he had been acquainted with Patrick Bartley for a number of years, and knew what his habits were in respect to drinking during November, 1894; that he was then running an hotel in the village of Bloomington, 40 feet from the bank of the defendants; that he could not state whether during that month he was habitually intoxicated or under the influence of liquor; that he knew that he drank liquor, but that he never saw him intoxicated so that he could not do business. We are constrained to hold that there is no...