Hemenway v. Beecher

139 Wis. 399 | Wis. | 1909

Winslow, C. J.

Two claims are made by the appellant trust company upon this appeal, viz.: (1) That there was no sufficient proof of a contract of novation; and (2) that there could be no judgment rendered against the trust company because there was no allegation in the complaint that it ever promised or agreed to pay the note.

As to the claim that there was no evidence of a contract of novation, we think it clear that it must be overruled. The defendant F. E. Beecher testified that he transferred to the company certain property, real and personal, together with some money, and that the company, in consideration thereof, not only agreed to pay off certain chattel mortgages upon the personal property, but also agreed to pay the note in suit. He further testified that shortly afterward he went to the plaintiff and told him of the arrangement and that the plaintiff said it was all right, that he would accept the defendant company as payor of the note and release Beecher. This testimony tended to prove all the essential facts necessary to constitute a novation, namely, a mutual agreement to which the creditor, the old debtor, and the new debtor assent, by which the old obligation is extinguished and a new and valid obligation is created and takes its place. Bohn Mfg. Co. v. Reif, 116 Wis. 471, 93 N. W. 466.

The claim that no judgment could be rendered against the appellant because there was no charge of novation in the complaint must also be overruled. Sec. 2610, Stats. (1898), relating to the interpleading of additional parties, and see. 2666a of the same Statutes, relating to cross-complaints and proceedings where controversies arise between defendants, are very broad in their terms and were intended to give courts plenary powers not only to call in new parties, but to mould the pleadings and dispose of all branches of a controversy in one action after having obtained jurisdiction of the necessary parties. The idea in both sections is to enable the court to grasp all the issues germane to the main controversy, whether arising between the plaintiff and the defendant, or between defendants, or between a defendant and an outside party, and dispose of them in one and the same action, and thus.avoid circuity of action and multiplicity of suits. This purpose should be encouraged rather than discouraged by the courts. It is in line with the idea that courts are formed to decide con- ^ troversies without unnecessary delay and without undue re-' finement as to pleading or procedure so long as the parties are before the court and the issues understood. It is true that the court has held that, in a purely legal action to obtain only a money judgment, the plaintiff cannot be compelled to bring in other parties than the one he has chosen to sue. Taylor v. Matteson, 86 Wis. 113, 56 N. W. 829. No such question is presented here. In the present case the plaintiff himself chose to bring in another party whom the defendant claimed had assumed the debt for a consideration. Had he not brought in this third party, and had the defendant’s allegations been proven to the satisfaction of the jury, the plaintiff would have been obliged to go out of court and commence a second action against such third person, perhaps to be defeated in that action also. It seems that he should have the privilege, if he chooses, thus to settle the entire controversy in one action and avoid the necessity of two actions and the possibility of contradictory results.

Doubtless, under see. 2656a, the court should have directed the defendants Beecher to serve an answer or cross-complaint on the appellant and required the appellant to answer thereto, because the real issue of fact in the case was between the defendants Beecher on the one side, alleging novation, and the appellant and the plaintiff on the other, denying any novation. This procedure would have been the more orderly, but the omission is not fatal, at least under the circumstances here present. The plaintiff’s amended complaint contained a complete copy of the defendants’ answer, thus apprising appellant of the claim which he must prepare to meet. This was served on the appellant and he answered thereto without objection. No motion was made by any one for any further pleadings. All parties came to the trial knowing the issues which they were expected to meet. Looking at matters of substance rather than of form, we cannot but regard the issue as quite fully made up, and therefore we think that the court rightly overruled the appellant’s objection made at the opening of the trial.

By the Gowrt. — Judgment affirmed.