154 Wis. 472 | Wis. | 1913
The action was on contract for the recovery of money damages. Sec. 3627, Stats., provides that at the time,of joining issue in such an action, or on any day to which the case may be adjourned, the defendant' may make an offer in writing to permit the plaintiff to take judgment against him for a stated amount of damages with costs. The acceptance is required to be in writing and must be filed'with the justice, and if the latter is satisfied that the action was brought in good faith and without collusion, judgment must be entered thereon.
Sec. 3628 provides that if the plaintiff does not accept such offer it shall be deemed withdrawn and shall not be considered in any manner or for any purpose by the justice or jury, ex
Neither of these statutes in express terms fixes the time within which the offer must be accepted. The appellant argues that the acceptance must be instanter, or at least before an adjournment is taken on the day on which the offer is made. It is not necessary in the present case to decide whether or not this is the correct' construction of the statute and we do not decide the question.
The offer was made on September 30th and the case was adjourned until October 7th. On this date the plaintiff announced in open court that he would demand a jury trial, whereupon the case was adjourned until October 9th. Plaintiff’s statement that he would demand a jury trial was tantamount to a declaration that' he declined to accept the offer made. The announcement, if made in good faith, and we assume that it was, was notice to the defendant that the plaintiff declined the offer made and that he (defendant) must prepare for trial. Accordingly he was in court with his attorney on October 9th. We do not-think the plaintiff should be permitted to take inconsistent positions on the record and be allowed to accept an offer which he had once declined. The general rule is that, where an offer is made and refused, the transaction is closed, and the party refusing cannot by changing his mind create a contract' or obligation against the protest of the party making the offer. The defendant was obliged to permit his offer to remain on file in order to relieve himself from costs if the plaintiff failed t'o recover a more favorable judgment than the one he might have taken under the statute. But sec. 3628 provides that if the offer be not accepted it shall be deemed withdrawn and not considered for any purpose except on a taxation of costs.
The justice should have proceeded with the trial on October 9th instead of entering judgment on the offer. It was error for the circuit court to dismiss the appeal. It is not
By the Court. — Tbe judgment appealed from is reversed, as is the order dismissing tbe áppeal, and tbe cause is remanded for further proceedings according to law.
