Tewksbury v. Bronson

• Citation: 4 N.W. 749,48 Wis. 581
• Parties: TEWKSBURY v. BRONSON and another
• Decision Date: 09 March 1880
• Court: Wisconsin Supreme Court

4 N.W. 749

48 Wis. 581

TEWKSBURY v. BRONSON and another

Supreme Court of Wisconsin

March 9, 1880

February 24, 1880, Argued

APPEAL from the Circuit Court for St. Croix County.

Plaintiff is the owner of certain dams across Clam river, in Barron county, erected and maintained by him pursuant to authority conferred by chapter 154, Laws of 1874, as amended by chapter 233 of 1876. This action is to enforce a lien on a quantity of logs sluiced through such dams in 1876, for the tolls which the act authorizes the plaintiff to charge therefor. The action was originally brought against the members of the firm of T. & J. Sutton and the above named defendants. The complaint avers that logs marked with four specified marks were thus sluiced through the dams; that T. & J. Sutton were the owners of such logs; and that Bronson & Folsom had some claim or interest in them. A personal judgment is demanded against the Suttons for the amount of such tolls, and that the same be declared a lien on the logs. The defendants answered jointly, that, before the action was commenced, the plaintiff assigned the claim in suit to a third party. The remainder of the answer is substantially a general denial. On the trial, the plaintiff testified that he did assign the claim as alleged in the answer, but that the assignee reassigned the same to him before the action was commenced. The testimony tended to show that logs bearing three of the marks specified in the complaint were passed through the plaintiff's dams, and that those marked with two of the marks (being most of the logs on which toll is demanded) belonged to Bronson & Folsom, and the remainder to the Suttons. On motion of the plaintiff, the action was dismissed as to the Suttons, and all the averments in the complaint relating to the logs marked with their mark were stricken out. The plaintiff also asked leave further to amend the complaint "by changing the prayer for relief therein so as to demand a personal judgment against Bronson & Folsom, so that said complaint will conform to the facts as proved." The circuit court denied the motion and nonsuited the plaintiff. Judgment was entered dismissing the action, with costs; and plaintiff appealed from the judgment.

Reversed and new trial awarded.

For the appellant, there was a brief by John W. Bashford and O. H Comfort, his attorneys, with Bashford & Spilde, of counsel and oral argument by R. M. Bashford. They contended, 1. That the amendment asked for by plaintiff, if deemed necessary to entitle him to a money judgment against Bronson and Folsom should have been allowed. "If the plaintiff demands relief in equity, when, upon the facts stated, he is only entitled to a judgment at law, or vice versa, his action does not, as formerly, fail because of the mistake. He may still have any judgment appropriate to the case made by the complaint." Leonard v. Rogan, 20 Wis. 542. To the same effect are Fox R. V. Railroad Co. v. Shoyer, 7 Wis. 365; M. & M. Railroad Co. v. Finney, 10 id., 388; Brandeis v. Neustadtl, 13 id., 142; Tenney v. State Bank, 20 id., 152; Stroebe v. Fehl, 22 id., 337; Hopkins v. Gilman, id., 476; Schumaker v. Hoeveler, id., 43. And where an issue not presented by the pleadings has been fully litigated on the trial, the complaint or answer may be amended to conform to the facts proved. R. S. 1878, secs. 2830, 2669, 2671; Dixon's note to Brayton v. Jones, 5 Wis. 627; Vilas v. Mason, 25 id., 310; Gilbank v. Stephenson, 31 id., 592; Giffert v. West, 33 id., 617, 622; Hodge v. Sawyer, 34 id., 397; Flanders v. Cottrell, 36 id., 564; Weston v. McMillan, 42 id., 567; Russell & Co. v. Loomis, 43 id., 545. See the whole subject of amendment under the code fully discussed in Supervisors v. Decker, 30 Wis. 624; and the rule and reasoning in that case adopted in Pomeroy on Remedies, etc., §§ 562, 564. Counsel criticised an apparently conflicting statement in Wrigglesworth v. Wrigglesworth, 45 Wis. on p. 259, as not sustained by the authorities cited. He further cited, in support of the proposed amendment, Lackner v. Turnbull, 7 Wis. 105, referred to ap provingly in Nary v. Henni, 45 Wis. 475; Moore v. Ruggles, 15 id., 275; Witte v. Meyer, 11 id., 295; Challoner v. Howard, 41 id., 355; State ex rel. Mitchell v. Smith, 14 id., 564; Tewksbury v. Schulenberg, 41 id., 592; Pomeroy's Rem., § 580; R. S., secs. 2646, 2886; Dunning v. Stoval, 30 Ga., 444; Glacius v. Black, 50 N.Y. 145, and 67 id., 563. 2. That under the statute authorizing the maintenance of a dam, and declaring that "the aforesaid Tewksbury, his heirs and assigns, shall have a lien on all logs, . . . until the charges aforesaid are fully paid," plaintiff's lien was assignable; that even if that were otherwise, it would not be extinguished by the transfer of the claim, but the right to enforce it would be suspended merely, and the remedy was restored as soon as the claim was reacquired by the plaintiff. Phillips on Mech. Lien, §§ 266, 278; id., § 56 and cases there cited; 2 Washb. R. P., 292; Kerr v. Moore, 54 Miss., 286; Davis v. Bilsland, 18 Wall., 659; Tuttle v. Howe, 14 Minn., 145; Laege v. Bossieux, 15 Gratt., 83; Skyrme v. O. M. & M. Co., 8 Nev., 219; Ritter v. Stevenson, 7 Cal., 389; Goff v. Papin, 34 Mo., 177. Plaintiff was therefore entitled at least to a judgment establishing his lien against Bronson and Folsom.

For the respondents, there was a brief by Baker & Spooner, their attorneys, with McClure & Marsh, of counsel, and oral argument by Mr. Marsh. They contended, 1. That as a condition precedent to any right to recover, plaintiff must have constructed and maintained the dams in the manner prescribed by secs. 1 and 2, ch. 154, Laws of 1874, under which he claims; and his failure in several important particulars to make proof of any compliance with the requirements of that act was of itself a sufficient ground of the nonsuit. 2. That the testimony failed to show the quantity of logs that went over the dam, and such failure was fatal to plaintiff's right to recover in the action. 1 Wharton on Ev., § 356. 3. That there was no proof that Bronson & Folsom owned the logs. 4. That there was no error in refusing to allow an amendment of the complaint so as to make it demand a personal judgment against Bronson & Folsom. The refusal was "entirely within the discretion of the court, and not the proper subject of exception." Binnard v. Spring, 42 Barb., 470; Onondago Co. Ins. Co. v. Minard, 2 N.Y. 101; Olendorf v. Cook, 1 Lans., 37. Sec. 2830, R. S., authorizes the court to allow an amendment of the pleading to make it conform to the facts proven, when such amendment does not change substantially the claim or defense. But the amendment there proposed would have been a substantial change in the claim against Bronson & Folsom. The action against them was purely equitable, and judgment could not go against them on a cause of action purely legal. Wrigglesworth v. Wrigglesworth, 45 Wis. 256, and cases there cited; Nosser v. Corwin, 36 How. Pr., 540. 5. That the lien granted by statute is simply in aid of the judgment against the owners of the logs; and, the action having been dismissed against the Suttons, who were the debtors, the lien fell with it. 6. That the assignment of the claim before the commencement of the action destroyed the lien. Caldwell v. Lawrence, 10 Wis. 331.

WILLIAM P. LYON, J.

OPINION

LYON, J.

1. By granting the nonsuit, the learned circuit judge necessarily held that the assignment by the plaintiff of the claim for tolls destroyed the right to a lien therefor on the logs, and that such right was not restored by the reassignment of the claim to the plaintiff before the action was brought.

In Caldwell v. Lawrence, 10 Wis. 331, this court held that the right to a lien given by statute to mechanics and others is not assignable, but is a mere personal right, which...