Town of Ripon v. Diedrich
Decision Date | 11 April 1967 |
Citation | 149 N.W.2d 580,34 Wis.2d 459 |
Parties | TOWN OF RIPON, a municipal corporation, Respondent, v. Carl W. DIEDRICH, Appellant. |
Court | Wisconsin Supreme Court |
Appeal from a judgment of the County Court of Fond du Lac County: Eugene F. McEssey, Judge.
For the appellant there was a brief and oral argument by H. Maxwell Manzer of Ripon.
For the respondent there was a brief and oral argument by William F. Hayes of Ripon.
Hansen, J., took no part.
Action commenced November 4, 1964, by plaintiff, town of Ripon, against Carl W. Diedrich to recover the cost of grading and graveling a road in defendant's Skyline Circle subdivision.
The complaint alleged that the defendant requested the town of Ripon to grade and gravel Skyline Circle roadway and that pursuant to said request the plaintiff did perform the work and that the reasonable value of the labor and material furnished by plaintiff on defendant's roadway was $1,711.65. The answer was a denial that defendant requested the town of Ripon to grade and gravel Skyline Circle roadway. The evidence showed that the defendant never expressly requested the town of Ripon to grade and gravel the roadway.
There was a motion by the plaintiff after trial to amend the complaint to conform to the proof and for judgment based on quantum meruit or unjust enrichment rather than oral contract.
The trial court allowed the pleadings to be amended to conform to the proof and granted judgment for unjust enrichment in the sum of $1,711.65. Defendant appeals from the judgment.
The material facts are stated in the opinion.
In view of the established fact that the defendant did not expressly request the town of Ripon to grade and gravel Skyline Circle roadway, the question turns upon the right of the plaintiff to have been permitted to amend his pleadings to prove a cause of action based on quantum meruit or unjust enrichment rather than oral contract.
The defendant was the owner of the tract of land referred to as "Skyline Circle." In 1958, defendant presented a plat for Skyline Circle to the town board for approval. As a condition for the approval of the plat defendant Diedrich agreed "to have the road in good condition so the town will not have to do any changing on grade and to have a good coat of gravel on road so that cars and trucks can travel on the road."
The plat was approved by the town of Ripon in 1958 and recorded in Fond du Lac county, Wisconsin.
Prior to the plat approval defendant Diedrich had spent $438.50 for culverts in order to provide access to Union street. No money had been expended at that time for gravel for the road.
Upon the demand of residents the town of Ripon in 1963 found it necessary to provide a suitable road for the residents living in Skyline Circle. In 1963 the town of Ripon spent $1,711.65 for grade and graveling the road known as "Skyline Circle" and the expenditure was billed to the defendant. The town of Ripon blacktopped the road a year later, but Diedrich was not billed for this work.
The defendant Diedrich at no time denied his obligation to the town of Ripon to grade and gravel the Skyline Circle roadway, as provided for in the town board minutes. Defendant testified that he had the roadway graded and graveled before the plat was submitted for recording. However, later he testified there were no bills for graveling before 1957.
The chairman of the town board testified as to the agreement of the parties and that there was no road -- just two tracks and no grade established by Diedrich.
At this point counsel for the defendant made the following statement:
The court permitted the witness to answer and we believe properly so in view of the form of counsel's objection and his admission that it was a case of quantum meruit. We believe the testimony was relevant to support an implied consent to have the road constructed by the town after Diedrich's failure to construct it within a five-year period. Here the agreement involved the construction of a roadway and the defendant knew, or should have known, that if he failed to construct the roadway, the town of Ripon would necessarily have to do so.
Under the provisions of secs. 269.44 and 263.28, Stats., the trial court properly allowed the motion to amend the pleadings to conform to the proof.
Sec. 269.44, Stats., allows the trial court to amend the pleadings even after judgment provided that the transaction in the amended pleading is connected with the subject matter of the action upon which the original pleading was based.
It is evident that both pleadings in the instant case arise out of the fact that the town of Ripon believed that the defendant Diedrich was obligated to construct a road pursuant to the conditional platting and that in the event he failed to do this, the town of Ripon could construct the road for him and submit the bill.
The same facts are present in both situations, and it certainly is in the furtherance of Justice to allow the town to amend its pleadings so that the plaintiff town of Ripon has a cause of action under a theory of implied contract.
Sec. 263.28, Stats., provides that any allegation in a pleading at variance with an element of proof shall be deemed immaterial unless the variance in the pleading misleads the adverse party to his prejudice.
The trial court in its memorandum decision stated:
Also, it must be considered that the defendant, Diedrich, was put on notice that if the court granted the motion to amend the pleadings, the trial court would then give judgment to one party or the other, depending on what the evidence established.
It was incumbent upon Diedrich at that time, following his timely objection, to also ask for an adjournment, a continuance, or just terms so that he could properly defend his case, providing he had a defense.
The burden was on the defendant-appellant to ask the trial court for exactly what he wanted or else it should be considered to be waived.
If defendant, Diedrich, had further evidence, in the way of a defense, it should have been brought to the trial court's attention. It is elementary law that issues cannot be raised for the first time on appeal. See Hastings Realty Corp. v. Texas Co. (1965), 28 Wis. 2d 305, 317, 318, 137 N.W.2d 79, and Herro v. Heating & Plumbing Finance Corp. (1931), 206 Wis. 256, 264, 239 N.W. 413.
In Harrington v. Downing (1918), 166 Wis. 582, 585, 166 N.W. 318, this court said:
"It was decided at an early date that matters of defense not brought forward and called to the attention of the court and opposing parties during the trial in some appropriate manner so that in the ultimate determination of the issues their influence might be given due consideration, are effectually waived, and thereafter they cannot be urged as grounds for a new trial or reversal in this court . . . ."
Had defendant raised in the trial court the argument that he had additional rebutting evidence, perhaps constituting a defense, it would then have been for the trial court to decide if a continuance...
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