120 Wis. 561 | Wis. | 1904
Appellant contends tbat tbe complaint, which was framed after tbe form of common counts, was insufficient to cover tbe element of delivery of goods to Gates on account of appellant, and tbat all evidence to establish tbe cause of action, so far as it depended on sucb element, was improperly received. Sucb contention is based on Smith v. Leland, 2 Duer, 497, and authorities depending thereon. Tbat case was decided in New York some fifty years ago, before tbe scope of tbe code, as to requiring tbe complaint to contain a statement of tbe facts constituting tbe plaintiffs cause of action, was definitely established. Tbe court there, in effect, held tbat the common-law method 'of pleading by use of tbe common counts was abolished by tbe statute. It was not suggested but tbat a delivery to one person upon tbe ■authority of another, and upon bis account, was in legal ■effect a delivery to sucb other, and tbat aside from tbe restrictions of tbe code tbe sale and delivery were pleadable according to their legal effect by tbe use of tbe indebitatus assumpsit common-law form; but it was said tbat since tbe ■code called for a statement of facts as distinct from legal •conclusions, facts could no longer be pleaded according to their legal effect. The same court, about tbe same time, in Lienan v. Lincoln, 2 Duer, 670, condemned tbe use of tbe ■common counts under tbe code, ■ saying tbat an allegation tbat defendant received money or property to tbe use of the plaintiff was- no longer sufficient to permit proof of tbe facts in tbat regard; tbat a use springing from tbe facts, giving-rise to a cause of action in favor of the plaintiff, was a legal result or conclusion from facts, and tbat the code required tbe facts, not tbe conclusion to be stated. Those early decisions were followed in some jurisdictions, ás counsel for appellant discovered. Williams v. Chadbourne, 6 Cal. 559; Kelly v. Johnson, 5 Wash. 785, 32 Pac. 752. Some text-writers have also made tbe mistake of dignifying such decisions as authoritative. 1 Estee’s PL § 710.
“There was at one time some difference of opinion upon the question whether the code did not abolish common counts, and require every cause of action to be stated specially. . . . But it is now entirely settled that the mode of declaring upon the common counts is proper now, as it was before the code.”
See 4 Ency. PL & Pr. 611, to the samé effect. This court has several times so decided. Grannis v. Hooker, 29 Wis. 65; McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800. The theory of those decisions is that the code calls only for a statement of ultimate facts; that it excludes mere legal conclusions and matters of evidence; that an ultimate circumstance may and often does have two aspects: that of a conclusion of fact, and a conclusion of law; in which case it is not a mere matter of law falling within the rule of exclusion, but may properly be viewed in its aspect as a fact and be pleaded as such, the minor circumstances being treated as evidentiary thereof. Harpending v. Shoemaker, 37 Barb. 270, 291. The rule is well established now, that in such cases facts may be pleaded according to their legal effect. 12 Ency. Pl. & Pr. 1023; South Milwaukee Co. v. Murphy, 112 Wis. 614, 88 N. W. 583; Miles v. Mut. R. F. L. Asso. 108 Wis. 421, 427, 84 N. W. 159.
Many illustrations found in the decisions of this court, of the method of pleading above indicated, might be given. In
It is claimed that there was a controversy as to whether defendant, by its agent, agreed to pay for the goods delivered to Gates, and that the referee failed to decide such issue. Counsel in that seems to overlook the general finding following the allegation of the complaint that the sale and delivery was to the defendant. That necessarily involved a promise, express or implied, upon the part of defendant, to pay for the property. The finding in regard to the matter might well have been more specific; but since the issues were covered it •cannot well be doubted that there is no infirmity in the judgment on that score.
The further point is urged that the decision as to authority of Hinman to bind appellant is contrary to the evidence. We shall not discuss that subject. -It is sufficient in our judgment that there is ample evidence in the record tending to support the finding, and that there is no clear preponderance of evidence against the conclusion reached.
It is said that no finding was made as to what the agreement with respondent was. That is clearly a mistake, except in so far as there was no specific finding going into the details. There was the finding heretofore alluded to that the goods were sold and delivered to defendant at its special instance and request. The finding was as full as the complaint. The same rule that holds the complaint good must hold the finding good also. The finding of the legal effect of evidentiary facts, such effect being in a proper sense an ultimate issuable fact, involved, necessarily, a determination respecting the existence of all the minor circumstances upon which it depended. The failure of the court to incorporate
.The remaining question for consideration concerns the finding that appellant, through its agent, was the purchaser of the merchandise delivered by respondent, as to whether it is contrary to the clear preponderance of the evidence. It must be conceded that if the credit was extended to Gates as primary debtor — the agreement with appellant’s agent in its behalf, if one were made, being to answer for the default of the principal, to stand as security merely — no legal liability was incurred thereby, -since the agreement, being verbal, is condemned by the statute of frauds. Sec. 2307, Stats. 1898. It is infrequent, where there is credible evidence that would render the determination of an issue of fact, if made by a jury, proof against attack upon appeal, that it is in serious danger of reversal, though made by the court or a referee; since elements may exist liable, legitimately, to have great weight with the latter which cannot in the very nature of things be preserved in the record. It has often been said that a clear case of error must exist in respect to a trial court’s finding of fact to warrant a reversal thereof because contrary to the evidence; that to appreciate the scope of such rule one must understand that it should appear not only that the finding is against the weight of the evidence, but so clearly that way, after giving due weight to the special opportunity of the trial court for discovering the truth, as not to be reasonably explainable upon any theory other than that in some way material evidence or circumstances were overlooked or wrong rules of law were applied to the evidence. True, as has been said, in testing the correctness of such a finding it must be kept in mind that there is a wide range between clear preponderance on one side of a controversy and preponderance on the other. It is so
Notwithstanding the obstacles above indicated, in the way of obtaining relief from a judgment because of errors in determining facts from evidence, it seems that they should be considered fully met in this case as to the finding that appellant, as principal, agreed to pay for the goods delivered to Gates. On the side of respondent, his evidence in chief, and that of Gates as well, in one aspect, is to the effect that appellant’s agent so agreed. The literal sense thereof would convict appellant of being the original promisor; yet it is susceptible of a meaning that only a collateral promise was' made. There is not a circumstance in the case supporting the former view, while the evidence of both respondent and Gates, in giving the details of what occurred between them and the agent, and all the evidentiary circumstances in the case, some of them being wholly inconsistent with the making of an original promise by such agent, indicate that if any promise was made it was collateral to that of Gates. We will refer to such circumstances in detail.
2. Respondent later testified, when called npon to give more in detail the conversation of the agent, that the expression used by him was that appellant would “stand behind” Gates. That clearly would indicate that the promise of the agent, if any was made, was understood to be collateral.
3. When called upon to explain in detail the conversation, Gates further said, his understanding was that his orders, issued to Andresen for merchandise, would be paid. That clearly indicates a collateral promise. ^
4. The goods, as furnished, were regularly charged to Gates, though respondent testified that he wrote on the ledger, after Gates’ name, “Eor TJpham Manufacturing Co.”
5. While it was not claimed that there was any original promise on behalf of appellant to pay for anything but merchandise, respondent furnished Gates with money from time to time, as well as goods, charging all to him as debtor.
6. While there was an account for goods furnished Gates prior to the one in question, and such accounts thereafter, which were paid by appellant upon Gates’ orders, the prior account was rendered as the latter’s debt and paid as such upon his written order; and the later accounts were specially guarantied by appellant and paid because so guarantied, not because of any promise made in May, 1899, relied upon by respondent.
Y. The account in question was first sent to appellant as a •debt of Gates to respondent. Nothing was done in connection with the matter to indicate that respondent looked to the former as the primary debtor. .
8. The account not being promptly paid, respondent wrote ■appellant, stating in substance that the agreement made by
9. Some time later respondent again wrote appellant with the view, as he said in effect, of stating his case fully. Proceeding to do so, he informed appellant that its agent promised in these words: “Tour company would stand behind Gates for stick, amounts as he might buy from me.” There can be no reasonable controversy but that if such were the language used between respondent and the agent at the outset, the parties understood that an extension of credit to Gates as the primary debtor was contemplated upon the collateral promise of appellant as security.
10. Respondent, in explanation of the circumstances that he charged the merchandise to Gates instead of to appellant, said that he did so to keep the account separate. He admitted, however, that there was no account to keep it separate from, since he had none with appellant or Gates during the time the one in question accrued, nor for a long time theretofore or thereafter.
11. The agent denied unequivocally having made the arrangement with respondent claimed by him, or having had any such conversation with him as he testified to.
Thus the evidence of Andresen and Gates, as before indicated, as it appears unimpaired by that elicited upon the cross-examination, in one aspect is consistent with the theory that a collateral promise was made, which harmonizes with all the other evidence and circumstances in the case. In the other aspect it is clearly impeached by such witnesses, and by all the evidence in the case bearing on the question. So, viewing the record, we cannot escape the conclusion that the finding under consideration is against the clear preponderance of the evidence, and most decidedly so. It seems that die referee and the learned trial court must have failed to-
By the Gourt. — The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment in favor of defendant for costs.