3 Wyo. 465 | Wyo. | 1891
Defendants in error sued plaintiff in error in the district court of the first judicial district, alleging as a cause of action that plaintiff in error “agreed and guarantied to pay a retainer fee of five hundred dollars” to defendants in error as attorney and counsel fees in a certain suit in which David B. Dole was plaintiff and Charles Hecht was defendant, in case the said David B. Dole would not pay the same; they, the said defendants in error, having theretofore been employed as counsel and attorneys for the said David B. Dole in said suit and action; in consideration that defendants in error would obtain and secure from said David B. Dole an agreement in writing to and with one Robert Marsh that he, the said David B. Dole, would pay to the Wyoming National Bank of Laramie City, Wyo., of which bank plaintiff in error was president and chief officer, and owner of a large amount of the capital stock thereof, whatever should be due to the said bank from said Dole on certain promissory notes then and tbereffield by said bank. It'is further alleged that defendants in error obtained such an agreement as was specified, and that said David B. Dole has not paid the sum of $500, or any part thereof, but is still indebted for the same, as well as plaintiff in error, together with interest thereon from the 29th day of April, A. D. 1889, at the rate of 12 per cent, per annum : of which said plaintiff in error on said 29th day of April, A. D. 1889, had notice, and was then requested by defendants in error to pay the same. It is further alleged that no part of said sum has been paid by said Dole or plaintiff in error, though each of them has been frequently requested by defendants in error to pay the same. Prayer accordingly. Judgment for defendants in error for $500, with interest at 12 per cent, per annum irom April 29,1887. It is urged on behalf of p/aintiff in error that the contract or agreement sued on was to pay the debt of another, and, not being in writing, is void under the statute of frauds. It would Dot be profitable, to enter upon a general discussion of the statute of frauds, or to attempt a review of the cases that have arisen and been decided under that statute. The cases are in hopeless conflict. They cannot all be reconciled. The most we can attempt to do is to ascertain whither the weight of authority leads, and to follow.. The weight of authority seems to be greatly in favor of the rule established by the courts of Massachusetts and many other states, and very fairly stated in the following language: “That
The judgment, however, is for a larger • amount than is claimed in the petition. Under our liberal statute of amendments, 1 the. petition might have been amended by ■ permission of the trial court, even after judgment, to correspond with the facts proved. There was no attempt to do this. The defect in the petition is not in the prayer for relief alone. If such were the case, there are authorities to the effect that the prayer might be disregarded, and relief granted according to the case made by the evidence, and within the issues made by the pleadings. In this judgment interest is allowed from April 29, 1887, two years longer than shown by the petition to have accrued. It is suggested that this is a mere clerical error, which may be disregarded. It might be considered so if there were other allegations in the petition fixing a time from which interest should run. There is no such showing. The language of the petition shows rather that defendants in error considered notice of non-payment by Dole and demand of payment upon plaintiff in error necessary to fix the liability of the latter, or, at least, to authorize the collection of interest. Their failing to amend would seem to indicate that they never abandoned this view in pleading, although they have abandoned it in argument. It would seem that they never intended to charge or claim interest prior to April 29, 1889. However this may be, there are two years’interest included in this judgment, and not included in the issues presented by the petition or in the prayer for relief. This is error. The petition fails to sustain the judgment to that extent. It appears, however, that there was a fair trial upon the issues actually made by the pleadings, and that the special verdict of the jury is sustained both by the pleadings and by the evidence. This last consideration disposes of the charge of misconduct on the part of the attorney of defendants in error before the jury. It shows thatthe jury werenot influenced by such alleged misconduct to the prejudice of plaintiff in error. The error is in the judgment, not in the verdict. The judgment is not sustained by the pleadings- or by the verdict. It would seem that the error is not one calling for a reversal and new trial, but rather for a modification of the judgment under section 3128 of the Revised Statutes.
Rev. St. Wyo. §3128: “A judgment rendered or final order made by the district court may be reversed, vacated, or modified by the supreme court, for errors appearing on the record. ”
