134 Wis. 297 | Wis. | 1908
The evidence of the defendant that he went into Van Kirk’s store with $400 in money and came out with the second note and but $200 in money was doubtless inadmissible. If this evidence did not tend to prove that defendant paid Van Kirk the amount due on the note and that Van Kirk surrendered the note upon such payment it was immaterial; if it did tend to prove these facts then it was evidence of a transaction had by the defendant personally with a deceased person through whom the plaintiff derived his title to the cause of action, and such evidence is excluded by sec. 4069, Stats. (1898). This was practically conceded by the defendant’s counsel, and in any event is
The first instruction given on the question of burden of proof was admittedly erroneous, and the correction subsequently made is equally unfortunate for the reason that by its last clause it places the burden of proof on both sides at once. These plain errors necessitate reversal of the judgment unless they were nonprejudicial, and to reach this conclusion we must be able to say that, without the evidence so erroneously admitted, a verdict for the defendant could be properly directed. We do not see how it can be so held. In order to justify a directed verdict for the defendant it must conclusively appear that the second note came to the possession of Van Kirk or his agent and was paid, or at least was paid to Van Kirk or to his agent. Striking out the evidence erroneously admitted this fact does not appear. It is argued that the words written across the face of the note, viz., “paid in full with interest,” are in Van Kirk’s handwriting, but the difficulty is that there was no evidence given on the subject, and in order to justify such a holding the court must be able to say from a comparison of these words with the receipt in evidence that it conclusively appears that they were written by Van Kirk. It would be a very exceptional case, we think, where a court would be justified in deciding such a question from the mere inspection of two very brief written sentences. However, neither paper having been made a part of the bill of exceptions they are not before us. Inasmuch as definite and substantial errors were shown, we must be able to say from the record before us, in order to affirm the judgment, that the errors were nonprejudicial, and this we cannot do even on the theory suggested, because we cannot examine the handwriting of the two papers.
By the Court. — Judgment reversed, and action remanded for a new trial.