155 Wis. 376 | Wis. | 1914
The complaint was for goods, wares, and merchandise of the reasonable value of $2,721.40 sold and delivered by plaintiff to defendant on and between April 4 and June 13, 1911, upon which there was paid $307.12, leaving due $2,414.28. The answer admitted “that between said dates plaintiff sold and delivered. to the defendant certain goods, wares, and merchandise as alleged in his complaint, but defendant alleges in that behalf that the correct reasonable value of such goods, wares, and merchandise was the sum of $2,716.49.” A counterclaim was then set forth by which the defendant averred a contract in writing with the plaintiff, “wherein and whereby said plaintiff employed this defendant to work for him for a period of one year from said 1st day of October, 1910, at and for the agreed salary of $4,000 per year, to be payable in equal in-
There being no question about plaintiff’s right to recover on the pleadings, the issues on the counterclaim were, with-out objection from either counsel, submitted on a special verdict framed and answered as follows:
“(1) Was the agreement between the parties made on or about October 1, 1910, for a straight salary of $4,000, not dependent upon a commission ? A. No.
“(2) Was the contract between the parties terminated on or before June 1, 1911 ? A. No.
“(3) Was a settlement made between the parties as to any contract for services on or about June 1,1911 % A. No.”
“If you are satisfied to a reasonable certainty by a fair preponderance of the evidence that the plaintiff and defendant agreed on or about October 1, 1910, that for the following year the defendant should receive a straight salary of $4,000, not dependent upon the amount of goods to be sold by him, that is, ■ upon a commission, ■ then you will answer this question ‘Yes;’ otherwise you must answer it ‘No.’ ”
It seqms best to treat the cause of action set forth in the complaint and that set forth in the counterclaim separately.
Oral evidence was erroneously admitted to prove the plaintiff’s bankruptcy, and thereafter a copy of an order of the federal court, not certified according to the state law or to the act of Congress, was erroneously admitted to prove a composition with creditors and the revesting in plaintiff of his property, including the chose in action sued on. These two errors were entirely immaterial and nonprejudicial. The plaintiffs demand and his right to recover thereon were admitted by the pleadings, and, rejecting either or both the matters attempted to be established by this incompetent evidence, the court was still bound to give judgment for the plaintiff on his demand so .long as the pleadings authorized no other disposition of the case. These rulings furnish a very good illustration of a class of nonprejudicial errors.
It is argued that the. admission in the answer is not sufficient to bring about this result and that the admission in the counterclaim is an offer of judgment'. But we cannot agree with either position. We consider the admission in the answer sufficient to warrant judgment for the plaintiff thereon, and the admission in the counterclaim to perform the double office of a tender of judgment and an admission of the amount due.
With reference to the counterclaim, it is contended by appellant that the court erred in refusing to grant his motion
By the Court. — Judgment affirmed.