Hawes v. Woolcock

30 Wis. 213 | Wis. | 1872

LyoN, J.

It is obvious that the jury, in making up their *215verdict allowed tbe defendant $900 rent for tbe use of bis farm in Canada, less tbe $750 wbicb be testified be obtained from "Walter W. Hoare in tbe litigation in Canada. If, therefore, tbe evidence concerning tbe receipt of tbe $750, was improperly admitted, it is an error wbicb must necessarily result in a reversal of tbe judgment.

It is claimed that the plaintiff should have pleaded the adjudication in Canada, and should have proved it by an exemplified copy of the judgment record in that suit, and that parol testimony of the amount allowed the defendant, and received by him, for the rent of the farm, was improperly admitted. But we think the principle that the contents of a record can, in general, only be proved in that way, is not applicable to this case. Tbe question here is, whether the defendant has received bom some other source, the rent or any portion of it, wbicb be claims in this action. If be has, we see no good reason why the plaintiff may not prove the fact by parol testimony, without pleading the special circumstances under which the same was paid. Had Walter W. Hoare voluntarily paid the defendant the rent of the farm, the fact could, doubtless, have been proved by parol; and it seems to us that the circumstance that be paid it by compulsion at the end of a litigation, does not change the principle. In either case the material inquiry is, has the defendant received from Walter W. Hoare, the rent wbicb be claims in this action ?

But the testimony was inadmissible under the pleadings, for another reason. Tbe payment of the rent should have been pleaded. This was so held in Martin v. Pugh, 23 Wis., 184; and that case is decisive of the present one. The payment having been made after the action was commenced, the plaintiff should have applied to the court for leave to make a supplemental reply setting up such payment. R. S., ch. 125, sec. 41. He may still make such application.

By the Court. — The judgment of the circuit court must be reversed, and the cause remanded for a new trial.