131 Wis. 34 | Wis. | 1907
The Tuling against appellant’s motion for a change of the place of trial from Eau Claire county to Wood county involves an important practice question, which must be solved by the statutes governing the matter without much M-d from judicial authorities. Such statutes provide
Thus it will be seen that the prime essential to a compulsory change of the place of trial of this action was a statutory demand. That contemplates opportunity on the part of the plaintiff to make the change by merely serving a written consent in general terms when there is but one “proper county,” and by such a consent coupled with a choice where there is more than one such county. A motion and order is only contingently necessary. The demand and the consent, as it has been said, work a change ipso facto. Woodward v. Hanchett, 52 Wis. 482, 9 N. W. 468. A motion is only necessary in case consent is not given in the maimer the statute provides, and is only proper when the statutory basis therefor has been laid by service of a proper demand.
It will readily be seen, and is freely conceded, that the proper place for the trial of such an action as this is not con
The words “the proper county” are material and should be embodied in the demand. They, by themselves, suggest that the county where the action was brought is not the county in which the corporation is situated or it has its principal office or place of business, or in which the cause of action or some part thereof arose. The words “the reason therefor” relate directly to the words “the proper county.” They, therefore, call for a statement in the demand not only showing why the county where the action was brought was not the proper place for the trial, but considered with reference to what follows, as to consent and choice, for a statement of why the particular county to which the change is demanded is the proper place for the trial, or, in case of there being more than one county, for a statement of the reasons and disclosing the names of such counties.
It is considered that any other construction of the statute than the one suggested would not enable both parties to an action to obtain the full benefit of the plan for changing the place of trial thereof without judicial interference. The words “specifying, it, unless there be more than one such county” do not signify, it is thought, that the proper place for the trial is not required to be disclosed in the demand, except in case of there being but one such place, but suggest that where there- is -but one proper county the demand should be
Applying the foregoing here the demand was insufficient. It required the trial to be Rad in Wood county because the corporation and its principal office and place of business were situated therein. TRe omission of the words “the proper county” suggested that Wood county was not the sole proper place for trial. TRe demand at best only disclosed that such county was a proper place for the trial.' It did not in any way suggest that there were not other such counties, including Eau Claire county. It might well be that the corporation was situated and Rad its principal office and place of business in Wood county and that the cause of action or some part thereof arose in Eau Claire or some other county. TRe demand not being an efficient compliance with the statute, the service thereof did not require plaintiff’s attorneys to respond thereto, nor did such service create a legitimate basis for the motion which was denied. That.is supported by decisions elsewhere under statutes similar to ours. Vt. Cent. R. Co. v. Northern R. Co. 6 How. Pr. 106; Van Dyck v. McQuade, 18 Hun, 376; Estrada v. Orena, 54 Cal. 407; Byrne v. Byrne, 57 Cal. 348; Warner v. Warner, 100 Cal. 11, 17, 34 Pac. 523.
Appellant’s bookkeeper, Mr. Whitney, Raving testified to
The dominant controversy was whether the contract price for handling and piling the lumber was sixty-five or seventy cents per thousand feet. Bespondent having testified the first information he received that appellant only intended to- allow him sixty-five was when the bookkeeper gave him a statement of his account in August, 1903, and that he then complained of thé' statement being wrong, in that the correct rate Was seventy cents per thousand feet, but went on with his work without seeing appellant’s managing officer in respect to the matter, — for the purpose of showing, by way of inference, that the contract price was sixty-five cents and giving significance to the circumstance of respondent proceeding with his work, as he did, after receiving the statement, Whitney was called to show what occurred between him and respondent in respect to the statement and why it was made at the sixty-five-cent rate. He testified, in effect, that prior to the making of the statement he did not receive any information inconsistent with the way fie credited respondent for his work, and that he told respondent, upon his complaining, that he did not know
It seems, under the circumstances, the evidence was proper. The position of appellant, in presenting the evidence of Whitney, was that if the latter knew of no other rate for crediting-up respondent’s work than the one he was guided by, and respondent, though so informed and directed to see the managing officer of the company in respect to the matter, proceeded with his work without doing so or making further complaint, such circumstances were evidentiary in appellant’s favor as to the controversy to be solved. To meet that phase of the case it was material to contradict Whitney’s evidence and by showing the whole conversation which took place between him and respondent explain thefiatter’s subsequent conduct. The evidence complained of was offered and received wholly for that purpose and not as original evidence to establish the contract price. It was made relevant by the evidence presented by appellant casting discredit on respondent’s evidence previously given.
Complaint is made because the court refused to allow a -statement drawn from appellant’s books by the bookkeeper to be received as part of his evidence. We are unable to see how -that was prejudicial, since there was no controversy except as regards the contract rate for the work and it was undisputed that the work was credited up at a sixty-five cent rate and respondent was informed thereof, as heretofore seen.
For the purpose of showing that respondent had notice as •early as August, 1903, of appellant’s understanding that the work was to be paid for at a sixty-five cent rate, defendant offered in evidence the statement furnished respondent, heretofore referred to> and the offer was rejected. It seems to be a conclusive answer to the assignment of error on this point that it was undisputed that respondent received notice of appellant’s attitude in all respects as it was desired to show by introducing the statement.
The defendant was not permitted to make proof as to the reasonable value per thousand feet for doing the work per
It is not in every case of a dispute as to the contract price-for work or material that evidence of the reasonable value is-permissible. That seems to be fairly settled by the authorities, as counsel for respondent claim.
The first case here on the subject is Kvammen v. Meridean M. Co. 58 Wis. 399, 17 N. W. 22. The controversy was: whether the contract price for operating a portion of a sawmill devoted to the manufacture of lath and shingles was forty cents or twenty-five cents per thousand of the product. It will be noted that the difference between the two contentions was-very much larger than in this case, yet the court without definitely deciding the matter inclined to the view that the evidence was properly rejected. Reference was made to Johnson v. Harder, 45 Iowa, 677, where somewhat similar evidence-was held proper under peculiar circumstances. The difference-between the two contentions was very large and the evidence-on each side very strong. The court said such evidence-“should be admitted with great caution, and limited to its-strictly legitimate province.” This court held that the controversy in hand did not satisfy the rule stated as well as the one in Campau v. Moran, 31 Mich. 280. Some indorsement was-given to the doctrine of that case in these words:
“It may be, as intimated by Mr. Justice Cooley in Campan v. Moran, supra, that where the evidence adduced upon both sides is in direct conflict and pretty evenly balanced, as to-the contract price, evidence that the cost of performance was greatly in excess of or greatly below such price might afford some reasonable ground for believing that the contract was for-the price nearest the cost.”
The doctrine thus suggested by Judge Cooley was subsequently quite consistently applied in several cases by the Michigan court.
“Where tbe disparity between tbe value of property, and what is claimed to bave been tbe contract price, is small, and within tbe fair range of what different persons might esteem to be a fair value, such evidence would be very slight, perhaps too slight to be admissible, but when tbe difference is very great, and beyond the range of fair difference in judgment, it might be entitled to much weight.”
Allison v. Horning, 22 Ohio St. 138, was also referred to. There tbe difference between tbe parties was about ten per cent. Tbe court, apparently with some hesitation, held tbat it was sufficient to render evidence of tbe reasonable value admissible. Along tbe same lines and explanatory of tbe Michigan authorities is Short v. Cure, 100 Mich. 418, 420, 59 N. W. 173, where it was said tbat such testimony is admissible only in cases where tbe difference in value is so great as to be
The nest instance where the subject was presented here is in Bell v. Radford, 72 Wis. 402, 39 N. W. 482. The difference between the parties was thirty-three and one-third percent. The next instance was in Mygatt v. Tarbell, 85 Wis. 457, 467, 55 N. W. 1031. There the difference was very much larger than in the case before us. The court said with reference to the agreement testified to, “this was a surprisingly low price, and under the rule laid down in Valley L. Co. v. Smith, 71 Wis. 304, 37 N. W. 412, and Bell v. Radford, 72 Wis. 402, 39 N. W. 482, evidence showing the value . . . Was admissible.” Thus it will be seen that the admission of the evidence was approved because of the “surprisingly low price” testified to on the one side as that agreed upon.
If we were to attempt to review the authorities elsewhere, in general, on the question under discussion this opinion would be extended to a great length without in the end arriving at a more definite conclusion than can well be reached by relying on the decisions heretofore made here with the additional helps to which we have already referred, and the rule to be observed as regards the decision of such a question by the trial court. It seems that the limitations suggested in Kvammen v. Meridean M. Co. 58 Wis. 399, 17 N. W. 22, have been adopted as a rule. Such rule leaves the trial court considerable latitude for the exercise of judgment as to when the facts are such as to render the evidence admissible as matter of right. The court must necessarily decide the question of relevancy or competency according to the particular circumstances of each case and, as in all such situations, the ruling, unless clearly wrong and unless prejudicial to the adverse party, should not be disturbed on appeal. It has often been decided here that the weight indicated should be given to the
To render such evidence as that under consideration admissible in a case of this sort there must be a direct conflict as-to the contract price of the thing to which it relates. The difference must be so great that the reasonable value thereof" from the standpoint of - the parties when the contract was made may reasonably discredit the evidence on the one side and corroborate that on the other, affording some reasonable-ground for believing that the contract was at the price most in harmony with such evidence. No guide is at hand in our decisions as to the difference between the adverse claims requisite to satisfy the call for a large difference, but in no case has it been nearly so small as in the instance in hand.
When the trial court was called to make the ruling complained of the evidence was undisputed that at the time of the negotiations leading up to the making of the contract, if one-were made, appellant offered respondent sixty-five cents per thousand feet for such work and respondent demanded, or said' he ought to- have, seventy cents, claiming that during the previous season he lost money doing similar work for appellant at the rate offered. The difference between the parties was about eight per cent, and that was asked in view of the-experience of the season before. True, such difference when-applied to nearly a year’s work and the handling of over-1'9,000,000 feet of lumber made a considerable sum, but sincé, as appears, some twelve fourteenths of the asked compensation-was required to pay the expenses, and appellant must have had in contemplation all the interferences liable to arise during the progress of the work, it is difficult to conclude the trial-court was clearly wrong in holding that the difference was not very great, within the meaning of the rule. We come to this conclusion viewing the situation as it was when the parties
It is of considerable and perhaps controlling importance that the direct question as to cost and reasonable value did not go to the value of the work, as the parties must have contemplated it at the time of their negotiations, but to the reasonable value, with all uncertainties which existed at the time of the negotiations eliminated. In Bell v. Radford, 72 Wis. 402, 39 N. W. 482, the evidence went to the reasonable value of the subject of the transaction at the time the trade was made, and the same is true as we understand it, in Mygatt v. Tarbell, 85 Wis. 457, 55 N. W. 1031, and Valley L. Co. v. Smith, 71 Wis. 304, 37 N. W. 412, which seems to be the logical basis for allowing such evidence. This was the main question ruled on: What was the reasonable value of sorting, piling, and doing the work specified, which Mr. Anderson did during the season of 1902 and 1903, per thousand, or what was its reasonable value during the sawing season of 1903? In Shakespeare v. Baughman, 113 Mich. 551, 71 N. W. 874, evidence of the reasonable value of work actually done in performance of a contract, to discredit the testimony of a party as to the price agreed upon before performance commenced, was held improper and the judgment was reversed because of its admission, the court saying:
“Evidence of the value of the services contemplated, taking consideration of the contingencies, rather than those actually found necessary, would bear upon the question, the latter being likely to throw very little, if any, light upon it.”
In that case the limitations upon the admissibility of such evidence, which we have suggested, were fully recognized.
Complaint is made because the court refused to permit appellant to introduce in evidence respondent’s statement of his extra work differing from one previously made. That seems sufficiently answered by the circumstance that the offer was made only to explain why the proper credit had not been
There was a motion for a nonsuit and a motion in appellant’s favor for a verdict. Both were grounded on the theory that the evidence did not warrant a finding that there was an agreed price for the work. It is considered that the motions were properly denied because the answer admitted that there was such a price, but alleged it was sixty-five cents per thousand feet. Moreover, we cannot agree that there was no evidence worthy of belief, showing that the work was done for a stipulated price. Respondent testified that at the time of the negotiations in respect to the work he said to McMillan, the person representing the company, that if he handled the lumber by the thousand he wanted a seventy-cent rate, and did not want to do the work at all by the thousand if a certain person mentioned was to be the scaler. Whereupon he was directed to write for a scaler, hire his crew and do the work, and that without further negotiations he did so. The evidence in that regard was contradicted and there were circumstances corroborating and discrediting it, but, on the whole, it Was fairly within the province of a jury to believe it. It is not contended, as we understand it, but what, if the circumstances were as respondent claimed, a contract was made at a seventy-cent rate. The fact that the work was done from first to last as it would necessarily have been in case of there being a contract price, respondent being credited with his work and charged with all the expenses, accordingly, as he rendered accounts and requested payment, no question being raised as to whether they were proper or not, was a most persuasive circumstance in favor of the contract theory. There was’some, explanation of that, it is true, but none of controlling significance, especially in view of the admission in the answer that the work was done at a contract price.
The court refused to instruct the jury, as requested, that the evidence of what Whitney said as to respondent being
It is claimed that the court submitted tbe case to tbe jury
It is suggested the court should have directed the jury that if they believed respondent’s version of what occurred in the negotiations with McMillan was true the finding should he in his favor, and if they believed from the evidence the version contended for on the other side was true the finding should he for appellant. It may be that such a submission, coupled with proper instructions as to the burden of proof in respect to the matter, would have been permissible, hut as we understand the charge the court adopted a course less favorable to respondent. We may well say in passing that the argument at this point seems to concede that the only controversy was one as to the contract price. Certainly if there was one as to whether a contract was made or not, the court could not well have submitted the case as suggested.
It does not seem that the court left it to the jury, as claimed, to construe the contract, but left it to them, as indicated, to
Lastly, complaint is made because the court refused to set aside the verdict and grant a new trial upon the ground, among others, of newly-discovered evidence. Such evidence was that of one person to the effect that respondent admitted to him no contract was made before the work of piling the lumber was commenced, and that some time thereafter it was agreed that he should do the work on a guaranteed wage basis of $2.50 per day, and as much more as he could make at a sixtydive cent rate. That was contradictory of the claim in the answer and corroborative of evidence on the part of appellant. It ivas not, strictly speaking, cumulative, as claimed by respondent’s counsel. Additional evidence on the same point is not cumulative if it is of a different kind. To illustrate,, evidence of admissions by a party as to the nature of a transaction between him and another is not cumulative as to evidence of such party in respect to such transaction. It is a mistake to characterize evidence on a particular point as cumulative merely because evidence has been introduced bearing on the same point. When there is a dissimilarity in the kind of evidence the last is not cumulative to the first. Sometimes it is said generally that additional evidence tending to prove the facts in relation to which evidence has been adduced is cumulative, but that is not necessarily so. Andersen v. State, 43 Conn. 514, 519; Hines v. Driver, 100 Ind. 315, 327; Winfield Bldg. & L. Asso. v. McMullen, 59 Kan. 493, 53 Pac. 481; Grogan v. C. & O. R. Co. 39 W. Va. 415, 421, 19 S. E. 563; Marshall v. Mathers, 103 Ind. 458, 3 N. E. 120.
However, since the new evidence was met by the positive
There are a few questions discussed in the briefs of counsel which we have not referred to, but they are of such a minor character that they may well be passed without special notice.
By the Gourt. — The judgment is affirmed.