107 Wis. 101 | Wis. | 1900
This case presents some very novel features. 'The complaint shows that it is a straight action at law for •money had and received. After the evidence was all in, the court conceived the idea that it was an action to enforce •a trust, and thereupon, against defendants’ objections, submitted special findings to the jury, and made findings of fact •and conclusions of law as in an ordinary equity suit. If the 'conclusion that this is an action to enforce a trust can be justified, still there was no warrant in our practice for turning the case into an equitable proceeding, against the defendants’ objection. The evidence introduced was proper, under the complaint, to establish the claim for money had •and received. Hence no question of waiver by failure to object thereto can be invoked. There are cases in which evidence has been received without objection which has virtually changed the action from law to equity, and the judgment has been sustained on the ground of waiver and failure of the party to make timely objection. This is not such a -case. But the fact of whether the court has or has not the power to make such transformation is not important in this case, because we are clearly of • the opinion that the view taken of it by the trial court was erroneous. The evidence fails entirely to disclose a trust, and hence the action of the ■court in parceling up the issue was distinctly prejudicial to the defendants, and the result is a mistrial. The status of the parties and their legal liability to each other was fixed, and must be determined, by the written contract, bond, and receipt executed when the transaction was closed. Prior to the alleged seduction the plaintiff had been a member of the defendants’ family, and had been recognized and treated as a daughter. Ho question seems to be raised but that the relation was sufficient to sustain a claim for the seduction. Under these circumstances, the father had a claim against Priest, which included loss of services of the plaintiff, she being under age; expense incurred by reason of the preg
Sec. 1532, Stats. 1898, recognizes the right of the person accused of being the father of a bastard child to settle with the complaining female by paying or securing to be paid to her “ such sum of money or other property as she may agree to receive in full satisfaction ” of her wrongs. The accused is also required to enter into bonds to save the authorities harmless from all charges for the maintenance of the child, and for the lying-in and support and attendance of the mother during her sickness. Independent of the statute, the female had no cause of action against her seducer, but under it she was entitled to demand such sum as she might agree to receive in satisfaction of her wrongs. The settlement in this case included the father’s claim for seduction, the obligation- of the accused to support and maintain the
The evidence of Priest to the effect that the money was paid over for the benefit of the mother was improper, as varying the terms of the written contract of settlement. In ■the absence of fraud or mistake, that instrument must speak for itself. As indicated by the special verdict and the instructions of the court, the case was submitted to the jury upon an entirely different and erroneous theory.
It was claimed by defendants that, after the plaintiff had made a demand for a portion of this money, they paid to her the sum of $600 in satisfaction of her claim. A receipt was taken, which reads as follows:
“ Received from Adam and Catherine Hilz six hundred ■dollars, being in full payment of any claim which I have, or may have after their death, as heir.
“ Mbs. Katie KammebmeyeR.”
On its face it relates to an entirely different matter, and, •unless it was clearly shown that there was some mistake or fraud in the writing, it was conclusive on the parties. Brand v. James, 67 Wis. 541.
What has been said is deemed sufficient to indicate the plan that should be pursued upon a new trial.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.