Stuckey v. Fritsche
| Decision Date | 21 June 1890 |
| Parties | STUCKEY v. FRITSCHE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Crawford county; GEO. CLEMENTSON, Judge.
Action on contract by Herman Stuckey against Charles Fritsche. From a verdict in plaintiff's favor defendant appeals. Rev. St. Wis. § 4197, provides: “Whenever, in any action, the plaintiff or defendant shall allege in their pleadings that the plaintiff or defendant or third persons were partners at any particular time, * * * such averments shall be taken to be true, unless expressly denied by the affidavit of the opposite party.” Section 2605 provides that “every action must be prosecuted in the name of the real party in interest.” Section 2853 provides: “Upon the trial of every action, the judge presiding shall, before giving the same to the jury, reduce to writing, and give as written, his charge and instructions to the jury.”Webster & Miller, for appellant.
Fuller & Ward, for respondent.
This action was commenced in justice's court to recover a balance alleged to be due from the defendant, Fritsche, to the plaintiff, Stuckey, for drilling a well for the defendant. Plaintiff recovered in the justice court, and Fritsche appealed to the circuit court. In that court the defendant filed an amended answer, denying the indebtedness, and setting up that the contract for drilling the well, and under which the plaintiff acted, was a contract made between the plaintiff and his brother, William Stuckey, as partners in business, and that by such contract they agreed to drill a well 300 feet deep, unless they procured a flow of water at a less depth, or unless the defendant directed them to quit before going to such depth, plaintiff and his partner to have one dollar per foot for the depth drilled, not to exceed 300 feet; and alleges that, after drilling the well about 130 feet, the plaintiff and his partner quit work without having procured a flow of water, and without the consent of the defendant. On the trial in the circuit court the plaintiff recovered a verdict of $47.
The real contest on the trial of this case was whether there was a contract between the plaintiff and the defendant by which plaintiff agreed to drill the defendant a well 300 feet deep, unless he procured a flow of water before reaching such depth, or unless sooner discharged by the defendant. The plaintiff denied that the agreement was to drill to the depth of 300 feet, or any particular depth. After a careful consideration of the evidence, we think there is a clear preponderance in favor of the agreement to drill 300 feet, unless a flow of water was sooner obtained, or unless the defendant consented for any reason to stop short of the 300 feet. The evidence shows that, after the plaintiff had drilled about 140 feet, his sand bucket stuck in the well, and it was difficult to get it out, and continue the drilling. The evidence on the part of the plaintiff tends to show that at this time plaintiff had a talk about continuing the work further, and the probability of getting a flow of water was discussed between the parties, and that, in view of the doubt upon that point, the defendant consented that plaintiff should stop work upon the well until he could procure a survey of the locality in order to determine whether it was probable that a flow of water could be got at that place; and thereupon the plaintiff stopped work on the well, and the defendant, though requested to pay for the work done, had neglected to do so, and had neglected to procure a survey of the locality, as he said he would do, until after the commencement of this action. And there is no satisfactory evidence that the defendant, at any time before the commencement of this action, directed the plaintiff to continue his work on said well until he reached the depth of 300 feet, or any other particular depth, or until the plaintiff should procure a flowing well.
The first and second errors alleged are that the verdict is wholly unsupported by the evidence. We think there is no merit in these objections to the verdict. If the testimony of the plaintiff and his witnesses was believed by the jury, then the verdict is supported by their evidence. The weight of the testimony and the credibility of the witnesses were questions for the jury, and not for the court. But it is in some way claimed that, because the defendant alleged in his answer that the contract was made, not with the plaintiff alone, but with the plaintiff and his brother William as partners, and as this allegation was not denied by affidavit, as required by the statute, (see section 4197, Rev. St.,) no verdict or judgment could be legally rendered in favor of the plaintiff alone. There are, we think, two sufficient answers to this contention: First, the question of the partnership of the plaintiff with his brother William was litigated on the trial without objection on the part of the defendant, and he cannot now avail himself of any advantage given him by the statute. The fact that it was so litigated without objection gives plausibility to the statement of the learned counsel for the respondent that the partnership was in fact denied by affidavit as required by the...
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...specific instructions, good in point of law and appropriate to the evidence, were requested and refused.' See, also, Stuckey v. Fritsche, 77 Wis. 329, 46 N.W. 59; Womack v. Circle, 29 Grat., Va., 192, 208. It may be well to notice that this is a departure from the requirements of the former......
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