Deuster v. Mittag

105 Wis. 459 | Wis. | 1900

Maeshall, J.

On defendant’s appeal the main question raised is, Did the trial court rightly decide that defendant waived the obligation of plaintiff to remodel the barn, so that it did not affect the relations between the parties after the expiration of 1892 ? That must be answered in the affirmative. Looking at defendant’s evidence in the most favorable light it will reasonably bear, the improvement was to be made as early as practicable during 1892. The sworn answer of defendant is to that effect. Therefore, the agreement was fully breached by plaintiff at the end of the first-year. No reason appears by the evidence why defendant could reasonably have expected, thereafter, that plaintiff considered such agreement binding or intended to recognize-it. The lease of the bam was verbal. Defendant’s continance in possession thereof after the expiration of 1892, knowing that plaintiff expected rent therefor at the rate of $100 per month, implied a promise to pay it, and payment thereof, as demanded from time to time, without objection, executed such implied contract with knowledge of all the facts, and irrevocably settled the whole matter between the-parties.

It is suggested that, whether there was a waiver of the-right to the improvement, was a jury question, and the court erroneously set aside the verdict in regard to it. The evi-dentiary circumstances all pointed to the fact of waiver.. They were all undisputed. There were no conflicting inferences that could have been drawn from the undisputed evidence that defendant entered upon the second year with knowledge that plaintiff expected rent at the rate of $100-per month and voluntarily paid rent at that rate without objection. That created, as a matter of law, contract relations-between the parties in accordance with their conduct, as before indicated. That was what the trial court held, and it necessarily resulted in confining the counterclaim for damages for breach of the contract to remodel the barn, to the period during which rent was paid on the faith of it, which did not, on the evidence, extend beyond January, 1893.

It is suggested that the defense of waiver was not pleaded1 to the counterclaim, therefore that plaintiff was not entitled to the benefit of it, if the fact existed. The conclusive answer to that is that evidence admitted without objection,, in fact the evidence of defendant himself, established the-waiver, and therefore if the reply was not broad enough to-present the question for adjudication, it might have been amended by the trial court on motion of the plaintiff on the trial or after judgment; or the court, on its* own motion, might have amended the pleading so- as-to have made the same conform to the facts proved. Flanders v. Cottrell, 36 Wis. 564; Bell v. Thomas, 61 Wis. 267; Murray v. Scribner, 74 Wis. 602. The rule on appeal, in such a situation, where there is no doubt but that the judgment is supported by the evidence, is to consider what ought to’ or might have been done as done, or to make the proper amendment in the appellate court, treating the neglect to shape the pleadings in the trial court so as to in form support the judgment as of no prejudicial significance. Gill v. Rice, 13 Wis. 549; Forcy v. Leonard, 63 Wis. 353; Hubbard v. Haley, 96 Wis. 578; Packard v. Kinzie Ave. H. Co., ante, p. 323. That practice is general in appellate courts, but here it is not governed by mere judicial sanction. It is- enjoined upon the court by statute (sec. 2829, Stats. 1898), to the effect that the court shall, in; every pleading or proceeding, disregard every error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and that no judgment shall be reversed by reason of such error or defect.

The foregoing disposes of the material questions presented by the defendant adversely to him, and requires an affirmance of the judgment on his- appeal.

On plaintiff’s appeal it is claimed that the evidence shows that the full amount of $-100 per month was voluntarily paid from the start, and that defendant either agreed that the rent should be at that rate and paid in accordance therewith, or that such rent was. demanded in violation of the agreement to improve the barn, and the demand was complied with without objection, either being fatal to the entire counterclaim. Clarke v. Dutcher, 9 Cow. 674. True, there is evidence tending to sustain both of such theories, and either would be fatal, as suggested. At the same time the evidence is susceptible of a reasonable inference thatthe-contract was. to the effect that the extra $100 should be paid in consideration of the agreement to rebuild the barn, and that it was paid the first year on the faith of such agreement, and, as a matter of convenience, in monthly instalments, with the rent-charge for the property in its unimproved condition. The jury took that view, and the trial court as well. We are unable to say, it clearly appears that such view is contrary to every reasonable inference that can be drawn from the evidence, hence it must stand as a verity in the case. Powell v. Ashland I. & S. Co. 98 Wis. 35; Dewey v. C., M. & St. P. R. Co. 99 Wis. 456.

The result of the foregoing is that defendant was entitled to recover damages suffered by him during the time he occupied the property under the breached agreement to rebuild the barn, that is, for the year 1892. The sum of $100 was paid upon the agreement to make the improvement. The consideration for such agreement wholly failed. Damages at least equal to the amount of the excess payment were suffered by defendant. The damages were so limited by the trial court. The record appears to be free from error on both appeals.

By the Gowrt.— The judgment of the superior court is affirmed on both appeals.