120 Wis. 331 | Wis. | 1904
Tbe evidence offered and excluded at least tended to prove an executed transfer of tbe replevied borses,, made on tbe day that the deed of tbe farm was executed. No reason is apparent why plaintiff might not prove that fact by parol evidence. The_statute of frauds offered no obstacle, for a delivery of property ánd payment of consideration were offered to be proved. Tbe fact that, as a part of tbe same transaction, there was executed a deed which recited that, for tbe whole consideration paid, tbe defendant conveyed-other property, presented no obstacle. Such deed,, in its very nature, was not an attempted expression of the-whole contract; it was but the execution of the whole or a part of the defendant’s side thereof. Cuddy v. Foreman, 107 Wis. 519, 83 N. W. 1103; Brader v. Brader, 110 Wis. 423, 432, 85 N. W. 681. Indeed, it is in no wise inconsistent with a deed which recites that, for a money consideration named, certain property is thereby conveyed, that for the-same consideration other property is also conveyed. A gross sum of $5,000 may buy several tracts of land or articles of’ personal property, and separate conveyances of every parcel be made, each reciting such sum as its consideration, and present no inconsistency, for the gross payment would be the-true consideration for each conveyance. Eor another reason the fact that a deed was made reciting as its consideration-the entire payment made would be no obstacle to prove that at the same time defendant made an executed transfer of other property, for such transfer would be valid even if there-were no consideration for it. Plaintiff’s claim that title to these horses was transferred to him on January 15th by the defendant would not be invalidated by the fact that he paid nothing for such transfer. It was entirely competent for the defendant to make over such horses to him as a free gift or in consideration of some claim made by plaintiff that he was equitably entitled thereto by virtue of the prior transactions,.
But here the defendant makes contention that, because the bill of exceptions is not certified to contain all the evidence, we cannot review the judgment. This is an entirely mistaken view. The absence of such certificate goes no further than to preclude us from examining any errors which are 'predicated upon disregard of the evidence, such as the directing, or refusing to direct, a verdict, and the like. When the bill of exceptions discloses palpable and distinct error, the
Defendant now interposes another obstacle to plaintiff’s recovery, in that his amended complaint contains no prayer for judgment. The action having been commenced in justices’ court upon the statutory affidavit in replevin, when it reached circuit court a formal complaint was filed, setting forth the necessary facts, but containing no prayer for relief. Defendant did not demur to the complaint, but answered. At the trial, however, he interposed an objection to any evidence because of the insufficiency of the complaint. That motion was overruled. Doubtless, the failure of complaint to declare the relief demanded renders it defective1. Sec. 2646, Stats. 1898. Whether, however, it can be said to fail to state facts necessary to constitute the cause of action, so as to be obnoxious to a general demurrer, or whether the defect should be reached by a motion to strike out or a motion to make specific, may perhaps be doubted. Indeed, there seem to be decided cases indicating that any of these methods may be pursued. The defect, however, is not one of which the defendant can avail himself at this time. The trial court overruled his objection in the nature of a demurrer ore terms, and received evidence. If the objections had been sustained, the trial court would of course have given plaintiff an oppor
By the Gourt. — Judgment reversed, and cause remanded for new trial. •