Harrison v. Juneau Bank

17 Wis. 340 | Wis. | 1863

By the Court,

DIXON, C. J.

Tbe instrument set forth in tbe complaint is not a simple receipt. It is more. That part which relates to tbe mode of sale and tbe application of tbe proceeds of tbe county orders, is a contract, and not open to explanation or contradiction by parol evidence farther than any other contract. 2 Pars. on Con., 67, and cases cited.

Tbe complaint, therefore, contains two distinct causes of action, tbe one equitable, tbe other legal, which in strictness should have been separately stated. R. S., ch. 125, sec. 29. That for tbe reformation of tbe contract is equitable, and was for trial by tbe court, unless formally submitted to the jury in tbe manner prescribed by tbe statute. R. S., ch. 132, sec. 6. Tbe other cause of action, for tbe recovery of money, is legal, and was for tbe jury, unless that mode of trial was waived. Proceeding to a trial by jury without ordering the equitable cause to be so tried, was not, even though the parties did not object, a submission of that cause to them so that the court might not still withhold it from their consideration. The judge might, nevertheless, have decided it himself according as he should find from the evidence, leaving the issue at law to the jury in case a verdict at their hands became necessary. The correct practice in such cases no doubt is to try the equitable . cause first, and afterwards the legal. But as that practice was not adopted, we see no absolute impracticability in the course which was pursued.

Regarding the judgment of nonsuit, so far as it was granted on the ground of insufficiency of the evidence to show a mistake in the making of the instrument, as a decision by the court of the equitable cause, the question is resolved into one of mere fact, and that is, whether the mistake was made out Upon this point we agree entirely with the court below. There is no definite and satisfactory proof that a mistake was made. The plaintiff Hanford knows nothing about it, and the only witness having knowledge or means of knowledge is Orton. His testimony falls far short of the clearness and certainty required by law in such cases. Lake vs. Meacham, 13 Wis., 355. At most it only raises a suspicion of mistake. It does not establish it beyond reasonable controversy.

Judgment affirmed.