Cramer v. Hanaford

53 Wis. 85 | Wis. | 1881

Cassoday, J.

Under section 2863, E. S., the judge is required to file his decision in writing, with the clerk of the court, within twenty days after the eourt at which the trial takes place; and it is urged by counsel that, because such findings were not filed within that time, they should be disregarded. But we hold that section to be merely directory as to the time within which the “decision” of the judge is to be given and filed. In this case the written exceptions to the findings of the court were not incorporated in the bill of exceptions, as required by section 2870, R. S., and hence the only question to be determined is, whether the judgment is sustained by the pleadings and findings. Wis. R. I. Co. v. Lyons, 30 Wis., 61; Thomas v. Mitchell, 27 Wis., 414; Mead v. The Supervisors, 41 Wis., 205.

From the repeated decisions of this court it logically follows that a married woman, having at the time no separate estate, may purchase property of any person, other than her husband, entirely on credit, and thereby make herself liable in an action at law for the contract price. Meyers v. Rahte, 46 Wis., 655; Dayton v. Walsh, 47 Wis., 113; Krouskop v. Shontz, 51 Wis., 204, and cases there cited. This being the law, the third conclusion of law was erroneous, and seemingly in conflict with the second conclusion of law.

If the' recitals of fact in the second conclusion of law are well founded, then it would seem that the appellants were entitled to recover, and the judgment should be reversed. In that conclusion the court say, in effect, that Kate D. Rana-forcl is precluded and estopped from defending in this action on the ground that she did not authorize the purchase, by reason of her omission and neglect to read, examine and inform herself of the contents of said promissory notes and the other instrument or instruments by her executed. Now, if the notes and other instruments signed by her precluded and estopped her from denying that the purchase made in her name was authorized by her, then she would be clearly liable on the note, on the principle of law already stated. But that would be in conflict with the fifth finding of fact, which found, in effect, that the purchase was made by her husband; and also in conflict with the thirteenth finding of fact, which found, in effect, that in the transaction her husband was not her agent, and was not authorized to speak, act for or represent her in that capacity. So it would be in conflict with that part of the fourteenth finding of fact, which found,-in effect, that she signed at the request of her husband, and “ merely as his surety.” If such are the facts, it may be very doubtful whether the appellants can recover. But another part of the fourteenth finding of fact raises an inference that she executed some other instrument or instruments in addition to the notes; and if they are of the character indicated by the recitals of fact in the second conclusion of law,— that is, such as “precluded and estopped ” her from disclaiming the purchase and the making of the note, — -then it would seem that the appellants could recover. But the character of the other instrument or instruments is not found nor otherwise referred to in the findings;- and we are, by the rule of law suggested, precluded from going into the evidence to determine their character. The difficulty with this case is, that the findings of facts and conclusions of law are so indefinite, inconsistent and contradictory that we do not feel at liberty to Qrder judgment for either party.

By the Court. — -The judgment of the county court -is reversed, and the cause is remanded for a new trial.