118 Wis. 258 | Wis. | 1903
The respondent seeks to justify the action of the trial court in directing a verdict by the contention that there was no evidence that the performances supplied by plaintiff were not in full accord with the contract. He asserts that testimony of persons attending such performances is no evidence of the insufficiency of the service, for the reason that such witnesses had no standard of comparison; the only proper standard, according to his contention, being that of the performances ordinarily given by this particular company. We shall not devote time to a consideration of this last proposition. Suffice it to say that an examination of the record discloses evidence of insufficient and defective performance as measured by any conceivable standard — whether that of opera
Respondent next contends that the action of the court was justified by an agreement made during the last of the three performances, before the completion thereof, which he asserts was a promise by defendant Potthoff to pay at some future time the unsatisfied balance of the $5,000 of contract price. The court did not put its action on the ground of such a promise, and upon examination we find no sufficient evidence thereof; the burden to prove such agreement or promise being clearly upon the plaintiff. The testimony of the attorney who drew the paper claimed to contain- this promise is quite as consistent with its being merely a recognition that the amount then paid was not intended in full satisfaction, but merely as a payment upon account of the entire contract price. The only other evidence on the subject is that of the defendant Potthoff, who says he cannot remember what such document did contain. Certainly such proof was not sufficient to conclusively lift the burden, and take the question of the making of any such promise away from the jury. The
Even if Potthoff might have become liable by acceptance of an inferior company and performance and waiver of some part of plaintiff’s contract duty, that could not justify verdict or judgment against the surety, Coates; certainly if the failure of performance were in any degree material to his liability. The surety is entitled to stand upon the strict terms of his contract, and cannot be held liable otherwise. W. W. Kimball Co. v. Baker, 62 Wis. 526, 22 N. W. 730; Stephens v. Elver, 101 Wis. 392, 77 N. W. 737. Coates bound himself to guaranty payment by Potthoff only on condition that the plaintiff performed his part of the agreement. It is apparent that all parties contemplated that the box-office receipts were the primary fund from which payment would be made. Anything which might tend to diminish those receipts impaired Potthoff's ability to meet his engagements, and enhanced the liability of the surety. That a poor performance would probably deter attendance is too plain for debate. Therefore defects such as the evidence tended to prove were material to the surety. Potthoff might for himself consent to accept an insufficient or an untrained orchestra different from that specified in the contract, either expressly or by acts of waiver; but he could not thereby impose on Coates a liability to which the latter had not bound himself. Hence, even in the view which the trial court took of the evidence and of the legal
One rejected offer of evidence must be noticed because of its probable materiality upon another trial. It having appeared that large numbers of the audience left the theater during one of the performances, a witness was asked what he heard any of them say as to their reason for doing so. If the fact of such departure was material — as it doubtless was— the reason was much more so. It would not seriously reflect on the quality of the performance if people left because of a gathering storm, or because the theater was too cold for comfort. It might have that effect if done because the conduct of the performers was unseemly, or their acting or singing bad. We can conceive of no clearer case of admissibility of statements as res gestee, characterizing the act done, than declarations of people, in the very moment of leaving a theater, of their reasons for so doing. The evidence should have been admitted. Mack v. State, 48 Wis. 271, 4 N. W. 449; Bliss v. State, 117 Wis. 596, 94 N. W. 325.
Por the reasons stated, the judgment must be reversed upon the appeal of each of the defendants, who, however, will be entitled to but a single bill of costs, they both having appeared by the same counsel and joined in the same case and brief.
By the Court. — Judgment reversed, and cause remanded for a new trial.