120 Wis. 270 | Wis. | 1904
Before the case was submitted to the jury, the trial court held, as a matter of law, that for want of sufficient demand the plaintiff could recover nothing on any of her several claims for pork, beef, or wood, amounting in the aggregate to $60. The jury found that the defendant did not sell the plaintiff’s cow and keep the proceeds of $30, as claimed by the plaintiff. Since the plaintiff has not appealed from the judgment, such finding of the jury and such ruling of the court eliminate from the case all of the plaintiff’s claims, except as to her claim for money due under the contract. As to that claim, the complaint alleges, in effect, ■ that the defendant agreed-in and by the written agreement executed November 28, 1893, to pay to the plaintiff annually $20 in cash, and that he had failed and neglected to pay said sum of $20 annually as agreed, and that there was then due and unpaid to the plaintiff by virtue of said agreement the sum of $52.50. The answer pleaded payment. The jury found that there was due the plaintiff, on such agreement to pay her $20 in cash yearly, $37.50. The only questions here for consideration are such as were determined adversely to-the defendant.
1. The defendant contends that a verdict should have been directed in his favor on the ground that the complaint fails to allege a consideration for the agreements on the part of the défendant. As indicated, it does allege the agreement in writing between the parties and executed by the defendant. That agreement was received in evidence without objection,, but is not printed and is not contained in the bill of exceptions, which is certified to contain all the evidence. Such recital in the certificate of the trial judge, being in conflict with the facts appearing on the face of the bill of exceptions, must, as to all questions depending on such facts, be regarded as untrue. Dorer v. Hood, 113 Wis. 607, 88 N. W. 1009. We must, in support of the judgment, therefore, assume that the written contract so received in evidence did show a con
2. Counsel cite a number of adjudications to the effect that, where payment is to be made by the delivery of specific articles, there is no obligation to pay in money until there has been a demand and refusal *to deliver the articles, and that such demand and refusal should be alleged and proved. That rule was applied by the trial court so far as the agreement required the defendant to make payments to the plaintiff by the delivery of specific articles of property. But that rule has no application to that part of the agreement which required' the defendant to pay to the plaintiff $20 in cash annually. This made it due without demand. The authorities go further and state:
“As a general proposition, when a specific sum of money is made payable by the agreement of the parties, whether at a specified time and place, or generally, without time or terms specified, as against the original debtor, no demand prior to the commencement of' a suit is necessary, but the debtor must seek out the creditor and make a tender to him, if he is within the realms of the state.”, 9 Am. & Eng. Ency. of Law (2d ed.) 199.
The complaint here alleges an agreement in writing to pay to the plaintiff $20 every year, the breach of it, and the amount due and unpaid by virtue of the agreement and the breach. This seems to be sufficient to satisfy the statute,,
3. We perceive no error in refusing to submit to the jury the question whether there was a settlement between the parties November 21, 1901, except as to the pork. No such settlement nor any settlement was pleaded, and the evidence bearing upon the question was pertinent to the issues in the case. The aj>peal seems to be without merit.
By the Court. — The judgment of the circuit court is affirmed.
