34 Wis. 397 | Wis. | 1874
I. It becomes necessarv at the outset to deter- . . mine the true construction of the instrument upon which this action is brought. The sum mentioned therein is, by the terms of the instrument, made payable on demand after the dam shall be removed, or after the defendant shall recover his damages caused by the dam. The reasonable construction of this language, and the one which obviously effectuates the true intent and meaning of the parties thereto, is, that the money is payable on demand, whenever the defendant shall have recov-
H. The learned counsel for the defendant argued with much earnestness and ingenuity, that the finding of the referee, which was approved by the court, that the dam was removed in April, 1869, so that the same no longer obsructed the flow of water in the river to the injury of defendant’s land, is not supported by the evidence. No useful purpose will be accomplished by recapitulating here the testimony bearing upon the subject matter of such finding. It is quite voluminous and conflicting. "We have examined the whole case carefully, and are impelled to the conclusion that this finding is sustained by a fair preponderance of the testimony.
III. The alleged right of the defendant to substitute the contract or undertaking of his grantee for his own is not, or rather the facts upon which such right is claimed .are not, fully set out in the answer. But, inasmuch as the testimony on that branch of the case was received without objection, if it proves a valid defense to the action, no good reason is perceived why the answer may not be amended, if necessary, even after judgment, so that the averments therein may conform to the facts proved.
IY. The complaint does not demand interest, but the referee allowed, interest to the plaintiff from August, 1869, the date of the demand. Under proper pleadings there can be no doubt that the plaintiff is entitled to interest from that date. ■ Without stopping to determine whether, under the complaint, interest can properly be allowed before the action was commenced,
It is believed that the foregoing observations dispose of all the questions in the case argued by counsel, and all that are worthy of consideration.
By the Court.— The judgment of the circuit court is affirmed.