McDermott v. Jackson

• Decision Date: 28 September 1897
• Citation: 72 N.W. 375,97 Wis. 64
• Parties: MCDERMOTT v. JACKSON.
• Court: Wisconsin Supreme Court

97 Wis. 64

72 N.W. 375

MCDERMOTT

v.JACKSON.

Supreme Court of Wisconsin.

Sept. 28, 1897.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Thomas McDermott against Andrew Jackson. Judgment for defendant, and plaintiff appeals. Reversed.

The defendant, for many years prior to March 13, 1895, was the owner of a jewelry store conducted in the name of A. Jackson, in Eau Claire, Wis. Much of the time he was away from the store, and during all the time it was largely in charge of his son, Arthur T. Jackson. An employé by the name of Andrew Pruher assisted in such management, particularly when the defendant was away. For years it was defendant's custom during the winter months to spend his time on a farm which he owned in the state of Florida, leaving the store wholly in charge of his son, assisted by Pruher. In the early part of the winter of 1894 defendant departed for his Florida farm. He was largely in debt at the time for goods bought for the store, though the evidence tends to show that he did not know such was the fact. The business had been run very carelessly for a long time so that defendant did not know definitely about his affairs. When he went away, he left, as he supposed, money enough, with receipts from sales and collections, to meet current bills. He gave no authority to his son Arthur to purchase goods on credit. Defendant did not return from Florida till May 30, 1895. In March, prior to such return, there was pressing necessity for money to meet past-due bills, some of which were in the hands of attorneys for collection. In this condition of things the son Arthur borrowed $500 of plaintiff on his father's credit, gave a promissory note executed in the name of the defendant therefor, and used the money in his father's business. Soon after defendant returned he was informed of the existence of the note. When the note became due plaintiff's attorney wrote a letter to defendant and sent it to him by mail, notifying him that the consideration for the note was used in the store business, and demanding that he either pay it or return the consideration. This action was thereafter brought, and two causes of action set forth in the complaint, one for a recovery on the note and the other for a recovery of $500 money had and received. The complaint and answer raised the issues covered by the special verdict, which was as follows:

“Question 1. Was Arthur Jackson authorized by Andrew Jackson to purchase goods of the character carried by the latter as a merchant, upon credit, during the absence of Andrew in Florida during the months of January, February and March, 1895? Answer, No.

Ques. 2. Was the money received by Arthur Jackson from the plaintiff upon the note in question, paid, laid out and expended in the business carried on by Andrew Jackson? Answer, Yes.

Ques. 2 1/2. If you answer question 2 in the affirmative, then did Andrew Jackson have knowledge of that fact prior to the commencement of this action? Answer, No.

Ques. 3. Did Andrew Jackson, prior to going away in December, 1894, forbid Arthur Jackson from purchasing goods on credit? Answer, Yes.

Ques. 4. Did Arthur Jackson, during the absence of Andrew, purchase diamonds upon the credit of said Andrew? Answer, Yes.

Ques. 5. Did such diamonds, or any considerable portion of them, go into the store and were then resold in the ordinary course of business? Answer, No.

Ques. 6. Did Arthur Jackson take and convert a large amount in value of such diamonds to his own use? Answer, Yes.

Ques. 7. Did Andrew Jackson, at the time he left for Florida in the winter of 1894, leave on hand at the store sufficient goods, with what money he left with his employé, Pruher, for the necessities of, and proper use in, the business, as Arthur Jackson knew he desired to have it conducted? Answer, Yes.”

Plaintiff's attorney requested the court to submit this question: Had Arthur Jackson authority from the defendant to borrow money on credit to be used in defendant's business on the 13th day of March, 1895? which was refused, and due exception was taken to such refusal. Plaintiff moved the court to strike out of the special verdict, questions 2 1/2, 4, 5 and 6, and the answers thereto, because such answers were contrary to the undisputed evidence, and for judgment in plaintiff's favor for $500 with interest, as prayed for in the complaint, which motion was denied and the ruling duly excepted to. A motion was thereupon made to set aside the verdict and for a new trial, which was denied. Judgment was thereupon, on defendant's motion, rendered in defendant's favor and plaintiff appealed.Wickham & Farr, for appellant.

C. T. Bundy, for respondent.

MARSHALL, J. (after stating the facts).

It is first assigned as error that the court admitted incompetent evidence against plaintiff's objections. We are unable to discover any prejudicial error in that regard. Many questions are referred to which the court allowed to be answered against appellant's objections, but a careful examination of them fails to show any ground for holding that any prejudicial error was committed. A few of the alleged objectionable questions will be referred to. Defendant was asked whether he made any attempt to discover what became of his money and goods--what his son had done with them. This was objected to upon the ground that it was hearsay and that it assumed that Arthur Jackson had done something improper with the goods. Obviously, whether defendant made an investigation was not hearsay. The question called for an affirmative or negative answer, not for what defendant did by way of investigating in case any was made. As the trial judge said, the latter might or might not be hearsay, but was not involved in the question. No reason is perceived for sustaining the objection upon the ground assigned. It was properly overruled.

In answer to the question, “Do you know anything about the condition of your business at the time you left, as to the indebtedness of the concern?” witness answered, “I supposed we did not owe only just the Jacobson bill.” Plaintiff's attorney moved to strike out the answer, in effect, because not responsive to the question. Obviously, what the witness supposed was immaterial, yet we are unable to see how the answer did or could have worked any harm to plaintiff. The evidence is practically undisputed that defendant was indebted to a large amount when he went to Florida, and that he did not know the facts in that regard. A judgment is never disturbed for the admission of improper evidence as to uncontroverted facts. Cannon v. Insurance Co., 53 Wis. 585, 11 N. W. 11, nor can a judgment be disturbed for the admission of immaterial evidence unless it probably did, or was likely to, prejudice the rights of the appellant. Noonan v. Ilsley, 22 Wis. 27;Kellogg v. Adams, 51 Wis. 138, 8 N. W. 115;Best v. Sinz, 73 Wis. 243, 41 N. W. 169.

This question was asked of defendant, and answered against appellant's objection: “You may give your best judgment as to the amount which your stock was reduced during the time you were gone;” also this question: “About how much of unpaid bills were there when you returned?” The objections to the questions were general. They had a bearing on the purpose for which the money was borrowed and the necessity therefor, and the subject of ratification, and were proper for such purposes. Though they may have been improper for the purpose for which they were asked, the court was not called upon, in response to a general objection, to limit the effect of the answers.

Defendant was permitted to answer this question against appellant's objection that it was leading: “I understand that your testimony was to the effect that a large amount of this $18,000 indebtedness, that you paid since your return, was for diamonds?” And to the question, “Did you look to see whether this amount of diamonds was added to the stock during your absence?” defendant answered, “No, it was not.” Plaintiff moved to strike out the answer as not responsive. The first question was directed to what the witness had previously testified to. The allowance of a leading question in regard to that was discretionary. The rule is that the allowance of leading questions is discretionary with the trial judge, and unless there be an abuse of such discretion such allowance does not constitute error. Coggswell v. Davis, 65 Wis. 191, 26 N. W. 557. The answer which appellant moved to strike out, if prejudicial at all, was so upon the ground of being irrelevant and immaterial. No objection on that ground was urged. The rule is that where an objection is made on an untenable ground, or on a ground that works no prejudice, and is overruled, such ruling furnishes no cause for reversing a judgment, because the admission of the evidence against objection on some other ground would have constituted harmful error. Coggswell v. Davis, supra.

There are some other objections to rulings on appellant's objections to evidence, but all the more important have been mentioned, and the others have been carefully considered, with the result before stated that no error in that regard appears that can work a reversal of the judgment.

It is also assigned as error that the court sustained an objection by defendant to the following question propounded by appellant's counsel: “Does it make any difference to you, Mr. Jackson, whether you borrowed the money after you returned, to pay those drafts, or whether Arthur borrowed it before you returned to pay them?” Defendant had testified that after he returned he was obliged to borrow money to pay store debts. There was evidence tending to show that the debts were less on his return than when he went away, and that they had been reduced in part by the money borrowed from plaintiff. On that state of the case the question was propounded. The meaning of the question clearly was, whether it made any difference to Jackson in a legal sense, or in the actual...