117 Wis. 248 | Wis. | 1903
The first proposition to be considered is that the court erred in holding that the cause of action set forth in the complaint is for damages for a fraudulent warranty. It is conceded that the making of false representa-, tions by defendant respecting the quality of the horse, with knowledge of their falsity on his part, and reliance thereon by plaintiff, are plainly pleaded in the complaint; but it is
It is claimed the court erred in refusing appellant’s application to strike out of the complaint the allegations showing that defendant falsely represented the character of the horse with actual or constructive knowledge of the facts. To sustain that cases are cited where, there being two causes of action set out in the complaint, one sounding in tort and one in contract, and there being no demurrer for misjoinder of causes of action, it was held proper to allow a recovery upon one of them and to permit the other to be stricken out or disregarded as surplusage. The situation is different here. True, the complaint contains all the allegations necessary to state a cause of action on contract, but no such cause of action was in fact stated or attempted to be stated. What appellant’s counsel desired was not to strike out one cause of action from the complaint and leave another, but to strike out one part of a cause of action, leaving the balance to stand as setting forth a cause of action of an entirely different character, — to amend the complaint by changing the form of the action. That is not permissible. The limit of the power of the court to allow amendments of pleadings will be found fully discussed in Gates v. Paul, ante, p. 170, 94 N. W. 55. The rule stated definitely in Carmichael v. Argard, 52 Wis. 607, 609, 9 N. W. 470, and Post v. Campbell, 110 Wis. 378, 382, 85 N. W. 1032, governs the subject.
Complaint is also made because the court instructed the jury that plaintiff, in order to recover, was bound to produce the greater weight of evidence to establish the facts alleged constituting fraud; that he was bound to establish his case “by a clear preponderance of the evidence.” The learned
Error is assigned because the trial judge reiterated the rule in instructing the jury, as to plaintiff being bound to establish the fraud by a clear preponderance of the evidence in order to entitle him to recover, and because,, by his manner while instructing the jury, he prejudicially impressed them against the defendant. We have no way of seeing from here the manner of the trial judge in instructing the jury, and since the instruction reiterated was proper and was not unreasonably repeated, we cannot hold that there was any prejudicial of other error in the matter. Doubtless a correct rule of law in a case may be given to a jury, accompanied by such manifestations by the trial judge as to indicate how the judicial mind leans in respect to the right of the plaintiff or defendant; but there is nothing before us to indicate that any such thing occurred upon the trial in question.
Appellant assigns error because the court refused to give this instruction:
“You are instructed that if from the entire conversation had between the plaintiff and defendant at the time of the sale the defendant gave the plaintiff to understand that the horse was good and all right and suitable for the purpose to which plaintiff would reasonably be expected to put the horse, then that conversation as an entirety constitutes the warranty.”
The charge was properly refused because the elements referred to did not constitute the warranty charged. The in
Several minor matters are referred to in the briefs of coun-, sel for appellant which we will not specially refer to. All that really merit attention are involved in the questions of whether the complaint was to recover on contract or for a tortious wrong, and whether the rule of law in respect to the quantum of proof required to entitle plaintiff to recover, was proper. The decision upon such questions renders the other matters referred to in appellant’s brief immaterial.
By the Gourt. — The judgment is affirmed.