161 Wis. 3 | Wis. | 1915
Tbe evidence that tbe understanding was that tbe lessor should be tbe owner of tbe increase from tbe leased stock, clearly contradicted tbe written contract and was improperly admitted. Furthermore, it was not responsive to any question asked and should have been stricken out on appellant’s motion which was made therefor. To tbe question: “Did you ever agree with Van Laarhoven as to having tbe right to mortgage, sell, or convey any of tbe stock on tbe farm ?” Loclcery was permitted, in tbe face of proper objections, to testify: “I forbid him to sell or mortgage. That was tbe understanding that be was not to dispose of any of tbe increase of tbe stock. That was to remain my property and not disposed of.” To permit that to stand, notwithstanding a proper motion which was made to strike it out, certainly was wrong and prejudicially so, since it appertained to a vital point in tbe case and, particularly, because Van Laar-hoven was not available as a witness.
Had tbe evidence which was improperly admitted been proper, still it seems tbe court should not have taken it as sufficient to warrant taking tbe case from tbe jury in favor of respondents. By itself, it is far from satisfactory. In tbe face of tbe circumstance that Loclcery caused tbe property to be seized in bis civil action and held as property of Van Laarhoven, it is not of sufficient weight to establish anything inconsistent with tbe legal effect of tbe unexplained unconditional lease of tbe live stock.
Tbe foregoing is so plain we are inclined to think tbe learned trial court was of tbe opinion that tbe increase belonged
By the Gourt. — The judgment is reversed, and the cause remanded for judgment in favor of plaintiff.