Orton v. Scofield

• Decision Date: 06 November 1884
• Citation: 61 Wis. 382,21 N.W. 261
• Parties: ORTON v. SCOFIELD.
• Court: Wisconsin Supreme Court

61 Wis. 382

21 N.W. 261

ORTON

v.SCOFIELD.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Waukesha county.

The original complaint alleged, in effect, that the defendant was indebted to the plaintiff in a sum named on account and claim against the defendant, and in favor of one Sweet, for services and commissions for the sale of premises described, and which services had been performed by Sweet on express contract with the defendant, and that the claim had been transferred by Sweet to the plaintiff before the commencement of the action, and demanded judgment for the amount. The demurrer thereto for insufficiency was overruled, and the defendant excepted. The defendant then answered, in effect, a general denial, and that, in the sale referred to, Sweet had, without the knowledge of the defendant, acted as the agent of one Nickell, with whom the defendant exchanged the lands described in the complaint for other lands, and that the fact of such agency was concealed from the defendant by Sweet, and that Nickell had paid Sweet for such service in his behalf. At the trial the plaintiff was allowed, against the objection of the defendant, to amend his complaint by alleging, in effect, that the defendant, having property in Chicago valued at $7,840, and desiring to exchange the same for a farm, contracted and agreed with Sweet to pay him $196 or 2 1/2 per cent. on the assumed value, if he would find, produce, or send to the defendant a party having farm property with whom the defendant might see fit or should effect an exchange therefor, to which Sweet agreed, and that Sweet did thereupon find, produce, and introduce to the defendant said Nickell as such person, with whom the defendant did, October 6, 1881, effect such exchange in Sweet's absence, and without any other intervention or action of Sweet, whereby Sweet earned the agreed amount and interest from that date, and that such was the plaintiff's claim for Sweet's services and commissions, and for which he prayed judgment as he had before prayed in his complaint. On the trial, the jury, under the charge of the court, found for the plaintiff. From the judgment entered thereon the defendant brings this appeal.John J. Orton, for respondent.

Sumner, Tullar & Hemlock, for appellant.

CASSODAY, J.

1. The cause of action alleged in the original complaint was quite indefinite and uncertain, but no motion was made to make it more definite and certain. Whether it was sufficient under the rulings of this court to support a judgment in favor of the plaintiff need not be here considered. Redmon v. Phœnix Fire Ins. Co. 51 Wis. 298, 299;S. C. 8 N. W. REP. 226. It is sufficient to know that it was susceptible of amendment and was amended before trial, and the trial had upon it as amended. It was not a departure from the cause of action sought to be alleged in the original complaint, nor did it introduce any new cause of action.

2. The precise objection that the amendment was not verified does not seem to have been made at the time of its allowance, and it is certainly too late to make it for the first time in this court.

3. The court, among other things, charged the jury that “if Mr. Sweet did not act as an agent for or in the interest of either party, but...