McCormick v. Ketchum

• Decision Date: 09 March 1880
• Citation: 4 N.W. 798,48 Wis. 643
• Parties: MCCORMICK v. KETCHUM
• Court: Wisconsin Supreme Court

4 N.W. 798

48 Wis. 643

MCCORMICK v. KETCHUM

Supreme Court of Wisconsin

March 9, 1880

Argued February 24, 1880

APPEAL from the Circuit Court for Waupaca County.

Defendant appealed from a judgment in favor of the plaintiff.

Affirmed.

The appeal was submitted on the brief of G. W. Cate, of counsel for the appellant, and that of Webb & Cochran for the respondent.

HARLOW S. ORTON, J.

OPINION

ORTON, J.

The complaint is for work and labor, and for money paid and expended. The answer sets up that the plaintiff was unskillful, and that his services were valueless; that he had received certain payments; and that his conduct in the business of his employment was such that the defendant suffered damage, which, by an amendment of the answer is alleged to be the sum of $ 3,500, and is stated as a counterclaim; and the answer prays for an accounting by the plaintiff.

The appellant claims here that the circuit court erred in not adjudging such an accounting. Whether this is a proper case for an accounting by either party, we do not decide. The cause having been submitted to and tried by a jury, and all of the matters in controversy by the pleadings having been fully considered and passed upon by the jury, without any objection on the part of the appellant, this objection to the verdict and judgment must be deemed to have been waived. Leonard v. Rogan et al., 20 Wis. 540.

All questions raised as to the effect of the evidence, as supporting the verdict or otherwise, and so fully and ably discussed by the learned counsel on both sides, cannot be considered, because "the bill of exceptions does not purport to contain all of the testimony; and, in the absence of a statement therein to that effect, we must presume, in support of the verdict and judgment, that every fact which was essential to a recovery by the plaintiff, was duly proved on the trial. This rule is too well settled to require the citation of authorities to sustain it." This extract is taken from the opinion of Mr. Justice LYON, in the case of Conklin v. Hawthorn et al., 29 Wis. 476, and renders another or new decision of the question unnecessary.

The casual remark of the learned judge, on the trial, in ruling upon the admissibility in evidence of the Arcadia yard books kept by one Hollenbeck, and the Whitehall books kept by one Earl, is excepted to, as a part of the charge of the court to the jury, and was not objected to at the time, so far as the printed case shows. This practice cannot be sanctioned; but it is sufficient to say that the remark of the judge in respect to these books, that "they don't affect the plaintiff one whit," appears to have been strictly correct; for the books, as such, had not been verified by those who kept them.

The instruction asked by the learned counsel of the appellant the refusal of which is assigned as error, was as follows: "If the jury find from the evidence that the services of the plaintiff in...