58 Wis. 250 | Wis. | 1883
In pursuance of a request from the administrator, the court read, in the presence of the jury, an instruction to the effect that the note was prima faeie evidence that all previous indebtedness from the deceased to the respondent had at that time been paid, and then added: “ The court declines giving the instruction ’(in unqualified terms),
The same erroneous theory seems to have actuated the •court from the commencement to the close of the trial. Thus, when objection was made to evidence because it was .precluded by the statute of limitations, the court interposed ■by'saying: “Suppose he [Phelan] advanced a certain -amount of money in 1870, he commenced living with her, -and whatever he had for his support was to apply on it right •along.” Again, the sheriff’s deed to Phelan of the sixty-.seyea acres of land which had been bid in by him on fore-closure sale against her for $471, was admitted in evidence, •against objection, on the ground that it was “ the means by. which Mrs. Fit&pat/riclc became his debtor.” The court went tstill further, and allowed the respondent to prove, against ■objection, that Phelan had bid in the land for her, and that ¡she was to have the land back on repayment of the money.
We are also of the opinion that the claim here made is not “ to recover the balance due upon a mutual and open account current,” within the meaning of sec. 4226, R. S. The account upon which the claim is based does not “ show a system of mutual dealings and of reciprocal demands between the parties,” as in Hannan v. Engelmann, 49 Wis., 282. Where the items in the account are all charged against the one party and in favor of the other, as here, it is not a
By the Court.— The judgment of the circuit court is re-, versed, and the cause is remanded for a new trial.