59 Wis. 400 | Wis. | 1884
We fail to see any error in this case which should reverse the judgment. Eor the purposes of the action the plaintiff admitted that the defendant rendered the professional services set forth in the counterclaim, and that they were worth the sum claimed for them; but he said that the services were gratuitous^ rendered. Whether they were or not was the real issue litigated on the trial. Now, on that issue the proposed testimony of Mr. Felher that he had been paid for professional services rendered in secret societies in the city of Oshkosh had no relevancy whatever; nor would the fact, if shown, that it was the custom to pay for such services, tend to prove or disprove the issue formed by the parties. It well might be that other lawyers had been paid for their services, and that it was customary to pay for them, and still the defendant might have agreed.not to charge for his.
The county court charged that the question which the-jury had to determinó from the evidence was whether the-services were performed by the defendant with the understanding had with the plaintiff that they were to be rendered gratuitously or without compensation. And the court-said that the burden was upon the plaintiff to show affirmatively that they were performed gratuitously. Of course,, in the absence of an agreement or understanding that the.services were to be rendered without compensation, the law
We do not think there is anything in the general charge of the court of which the defendant can complain. The questions of fact seem to have been fairly submitted upon all the evidence. After the general charge was given the court, at the request of the defendant, gave some instructions to the effect that there was no presumption in law because the plaintiff and defendant were members of the same lodge that the services were gratuitously rendered, but that the onus was on the plaintiff to show they were not to be paid for. The plaintiff’s counsel then asked the court to charge that the defendant must establish his counterclaim by a preponderance of the evidence in order to recover upon it. To this the learned county judge replied: “ I have said the defendant has the affirmative, and I think he is bound to show by a preponderance of the evidence that he is .entitled to recover.” To this part of the charge the defendant took an exception which is relied on here for a reversal of the judgment. The general proposition that the burden of proving a fact lies upon the party who asserts it in his pleading cannot be controverted. This was what the charge really amounted to. If the defendant was dissatisfied with
By the Court. — The judgment of the county court is affirmed.