77 Wis. 378 | Wis. | 1890
Upon this appeal the learned counsel for the defendant insists that the court erred in setting aside the findings and judgment of the referee, and in finding in favor of the plaintiffs and rendering judgment in their favor. They also allege as error the refusal of the court to permit the defendant to give further evidence in support of his defense, after the court had set aside the findings and judgment of the referee.
In order to intelligently consider the justice of the judgment in this case, it is necessary first to understand what is admitted by the pleadings in the case. After a careful consideration of the complaint of the plaintiffs and the answer of the defendant as to the plaintiffs’ cause of action for cutting and hauling the logs in question under the contract, it is evident that, in the absence of any evidence on the part of either the plaintiffs or defendant, the plaintiffs would have been entitled to judgment for the sum of $3,081.07 as the balance due for the logs cut and put in in 1883-4, and for the further sum of $3,444.33 as the balance due for putting
This proposition is not contended against as to the amount claimed to be due for the second winter’s work, but the counsel for defendant maintains that, because the plaintiffs allege in their complaint that as to the work done in the-season of 1883-4 there was an accounting and a balance agreed upon, which the defendant promised to pay, the plaintiffs must prove such an accounting and settlement in order to recover the amount claimed as due for that year’s work. We cannot take this view of this pleading. The facts stated in that part of the complaint show the amount of money due to the plaintiffs for the first winter’s work to be over $27,000, and the statement as to the accounting simply amounts to an admission that it has all been paid-
The -learned counsel for the appellant insists if it be admitted that in the absence of any proofs by either party the plaintiffs should recover, then, upon the testimony given on the trial by Patrick Gaynor, the judgment should have been in favor of the defendant, and that the learned circuit judge erred in reversing the decision of the referee upon the question of a final settlement and payment by the defendant of all claims of the plaintiffs for the work done under the contract.
After carefully looking over the evidence given on the subject of the settlement and payment for the entire work, done under the contract, we conclude that the learned circuit judge was right in setting aside the findings of the referee on that subject. There is no evidence given by the plaintiff Bl&wett on the subject of settlement, except as to the first season’s work, and as to that he simply testified, in answer to certain questions, as follows: “ Question. At this time had the business of the former year been settled
Tbe testimony of tbe plaintiff Blewett covers nearly eighteen pages of tbe case, and wbat is above quoted is all
It is very clear that the testimony of Blewett does not in any way sustain the contention of the appellant that the claims of the plaintiffs were settled and paid for before this action was commenced, and no claim is made that the settlement was proved by the testimony of Blewett. But the counsel for the plaintiffs put the plaintiff Patrick G-aynor on the stand as a witness in their behalf, and he was examined and cross-examined at great length. His testimony covers about thirty pages in the printed case. The plaintiffs evidently put this plaintiff on the stand mainly for the purpose of producing testimony to sustain their second 'cause of action for damages on account of the alleged refusal of the defendant to permit the plaintiffs to put in a larger quantity of logs in the season of 1884-5, and it will also be seen by a careful reading of his testimony that the plaintiffs did not question him at all in relation to any settlement or adjustment of the claims of the plaintiffs against the defendant, except such as had arisen out of the logging which was done the second season. It is not very apparent why the learned counsel for the plaintiffs examined this plaintiff upon the subject of settlement at all. But it is clear that he did not examine him at all as to any settlement, except as to the second season’s business, and what was said by this witness as to a general settlement of all claims of the plaintiffs for all work done under the contract was called out on the cross-examination by the counsel for tne defendant.
The question upon this appeal is whether the evidence of this witness, who though a party plaintiff is such party unwillingly on his part, and forced upon the other plaintiff by
We t.bi-nk the law is very plain that a settlement made by one of two partners of a claim due the partnership
It is urged by the learned counsel for the defendant that as to the ] laintiff Patrick Gaynor, he ought not, on his own statement, to be entitled to recover in this action, and that the judgment should only have been in favor of the plaint
The learned counsel for the appellant insists that the judgment should be reversed because the circuit court refused to permit the case to be opened for the receipt of further testimony on the part of the defendant. This motion is one peculiarly addressed to the discretion of the trial judge, and his determination is conclusive unless it clearly appears that injustice will be done to the defendant by refusing to open the case and receive the evidence offered. As the defendant was permitted to withdraw all his counterclaims, and as the judgment is not greatly in excess of the amount admitted to be due upon the contract, exclusive of such counterclaims, and as it clearly appears that the defendant still has it in his power to limit the enforcement of the judgment to the amount actually due to the plaintiff Blewett on the contract as between himself and Patrick Gaynor, we do not see that any great injustice is likely to result from the refusal of the learned judge to open the case for further proofs. We must therefore decline to reverse the judgment for that cause.
By the Coiort.— The judgment of the circuit court is affirmed.