Sullivan v. Collins

• Decision Date: 21 June 1900
• Parties: SULLIVAN v. COLLINS ET AL.
• Court: Wisconsin Supreme Court

107 Wis. 291

83 N.W. 310

SULLIVAN

v.COLLINS ET AL.

Supreme Court of Wisconsin.

June 21, 1900.

Appeal from circuit court, Fond du Lac county; Michael Kirwan, Judge.

Action by John E. Sullivan against M. L. Collins and M. V. Sullivan for rent and for the value of a coat. From a judgment in favor of defendants, plaintiff appeals. Reversed.

This is an action commenced November 24, 1897, to recover the sum of $912, and interest, alleged to be due for the rent of a store from May 14, 1891, to April 8, 1893, and also the sum of $70 alleged to be due for an overcoat and a suit of clothes delivered to one Gordon at the request of the defendants. The defendant M. V. Sullivan is a brother of the plaintiff John E. Sullivan, and made default in the action. The defendant M. L. Collins answered, admitting the leasing of the store, and claiming that the rent had been paid, and denying any knowledge and information sufficient to form a belief as to the truth of the allegations forming the second cause of action. At the opening of the trial the court permitted the defendant to amend his answer without terms by pleading the statute of limitations as to that part of the rent which accrued prior to November 14, 1891. The evidence on the trial showed that the plaintiff prior to 1891 was, and continued to be thereafter, a merchant tailor in the city of Fond du Lac; that the defendants M. V. Sullivan and M. L. Collins were on the 14th of May, 1891, and continued up to the 8th of April, 1893, to be, co-partners engaged in a gentlemen's furnishing business in the same city; and that during the time from May 14, 1891, to April 8, 1893, the defendants, as co-partners, rented of the plaintiff one-half of the store occupied by the plaintiff, at a rental of $40 per month. The claim of the defendant Collins was that this rent was paid. The jury rendered a verdict for the defendants, on which judgment was entered, and the plaintiff appeals.

Giffin & Sutherland, for appellant.

Edward S. Bragg, for respondent.

WINSLOW, J. (after stating the facts).

1. Upon the opening of the trial of the case, the court, upon oral application of the defendant, without any fact being shown to excuse the delay, and without imposing terms, allowed an amendment to the answer setting up the statute of limitations as to the six-months rent which accrued between May 14 and November 14, 1891. The statute allowing amendments upon the trial is a broad and sweeping one, and is in very frequent use in the trial courts. It gives the trial court full power to allow amendments of the pleadings upon the trial “in furtherance of justice and upon such terms as may be just.” Rev. St. § 2830. The matter is left to the sound discretion of the trial court to decide whether the proposed amendment is in furtherance of justice, and, if so, upon what condition the amendment is to be granted. With this discretion this court will not interfere, except in cases of abuse thereof. Steel Co. v. Budzisz (Wis.; present term) 81 N. W. 1027. The rule has long been established in this court that there is a substantial difference between such defenses as usury and the statute of limitations and other ordinary defenses, especially when application is made to the court for favor or indulgence by way of amendment. Morgan v. Bishop, 61 Wis. 407, 21 N. W. 263, and cases cited. While the court had the same power to allow amendments setting up such defenses, the question whether such an amendment, setting up what is considered a hard and unconscionable defense, and savors of a harsh penalty, is in fact in furtherance of justice, is necessarily a very different question from that which arises when application is made to insert some minor allegation in a pleading, or set up a defense which goes to the merits of the case. It is believed that the cases are extremely rare when it would not be an abuse of discretion to allow such an amendment to be made upon the trial of the case without any showing to excuse the delay, and without imposing some terms or condition. The nearest approach to such a case, perhaps, is that of Steel Co. v. Budzisz, supra; but in that there was a showing of facts tending to excuse the delay, and, furthermore, the only objection made was that of want of power in the court to permit the amendment, and it was held that this amounted to a waiver of other objections. In the present case, however, in addition to the failure to show any reason for the delay, there was an express claim by the plaintiff that terms should be imposed. Under the repeated ruling of this court cited in the case of Morgan v. Bishop, supra, we are compelled to hold that it was an abuse of discretion to allow the statute of limitations to be set up by amendment upon the trial without any showing to excuse the delay, and without the imposition of any terms or conditions. Such a ruling cannot be considered as “in furtherance of justice.”

2. Upon the opening of the case the plaintiff was called as a witness, and examined simply as to the alleged sale of the overcoat and suit of clothes by him to one Gordon, upon the promise of the defendant to pay for the same. Upon cross-examination the defendant's attorney proceeded to ask him numerous questions as to the receiving of checks by the plaintiff from the defendant in August and September, 1891, before the alleged sale of the clothes, and also in the year 1892. These questions were properly objected to as not proper cross-examination, but the objections were overruled. It is plain that the cross-examination did not relate to any matter gone into on the direct examination, but related to the affirmative defense of payment of the rent, and the plaintiff had not been examined as to that cause of action at all. The rule is well known that the cross-examination of a witness should be confined to matters brought out on the direct examination. Norris v. Cargill, 57 Wis. 251, 15 N. W. 148;Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101. It is also true that in the discretion of the court a broader range of cross-examination should be allowed in the case of a witness who is also a party. 3 Jones, Ev. § 844. This latter rule is most frequently applied in cases of alleged fraudulent transfer of property where the party has been examined in chief as to his ownership of the property in dispute. In such cases the circumstances of the transfer may be fully gone into as cross-examination. Kalk v. Fielding, 50 Wis. 339, 7 N. W. 296;Weadock v. Kennedy, 80 Wis. 449, 50 N. W. 393. Language was used in the last-named case indicating that a party may be always cross-examined on the whole case whenever he has testified as to any fact in the case, but the case did not involve that question, and certainly there was no intention to depart from the well-established rules above cited. Certainly, an affirmative defense of payment cannot be proven by cross-examination when the party has not given any testimony as to the claim which is alleged to have been paid. Under the circumstances, we think the allowance of these questions, against objection properly taken, was error.

3. Upon the cross-examination of the plaintiff, the defendant's counsel asked the plaintiff if there had not been trouble between himself and the defendant, and the plaintiff denied that there had been any trouble. Thereupon the following proceedings took place: “Q. You were a witness, were you not, in the case of the state against M. V. Sullivan, charged with larceny in that store from M. L. Collins? (Objected to as incompetent and immaterial, and not cross-examination.) The Court: What is the object, general? Gen. Bragg: I don't care to tell the witness the object. I think the question is proper. We...