Lewis v. Newton

93 Wis. 405 | Wis. | 1896

Cassoday, C. J.

The plaintiff had worked for the defendant during the previous season at the same business. November 14,1898, the defendant had recommended the plaintiff, to whomsoever it might concern, as “ a first-class band-saw filer.” There is no claim that he was discharged for incom■petency or because his work was not satisfactory.

1. The only defense is that the motion for a nonsuit should ihave been granted on the ground that the undisputed evidence was that the contract of hire was not for the season, nor “ for more than one day.” The plaintiff’s first letter to the defendant was an inquiry “ in regard to the coming sawing season,” and “ how long a run ” he expected to have, and whether he was “ going to .run nights,” and what the defendant was willing to pay him “ to come and keep the saws up.” In response to such inquiries the defendant stated what he was willing to give, and that he expected to “ have a good season’s work.” "We must conclude that the trial ■court was right in holding, as a matter of law, that it was a •contract for the season, or at least as long as the defendant ran his mill. This sufficiently appears from numerous decisions of this court. Jennings v. Lyons, 39 Wis. 553; Diefenback v. Stark, 56 Wis. 462; Koplitz v. Powell, 56 Wis. 671; Foster v. Singer, 69 Wis. 392.

2. The court properly rejected the so-called offer of the ■oral testimony of a so-called witness who had not been sworn and was not in court. The absurdity of such an offer is apparent when it is observed that, had the court ruled the other way, the defendant’s counsel would have had nothing 4o offer but his own unsworn statements.

3. The defendant claimed that he could prove by one Furniss that tbe plaintiff had earned during the season about $200 more than he had admitted in his complaint. The:court .thereupon waited several minutes for the witness to appear, and then declined to hold the case open any longer. Thereupon the defendant made the improper offers mentioned, and he now claims, and has an affidavit in the bill of exceptions to the effect, that while his counsel was making such offers Furniss came into the court room with account books, ready to take the stand as'a witness; but there is-nothing in the record indicating that the trial court was informed that such witness was in the ' court room, or ready to take the stand, or that there was any refusal of the court to allow any witness produced upon the trial to be sworn. The defendant is conclusively presumed to have known the. issues to be tried. If he claimed that the plaintiff might have earned more than he admitted in his complaint, the-burden was upon him to show it. Norris v. Cargill, 57 Wis. 251. But he failed to show any adequate excuse for not having the witness in court during the trial. So he utterly, failed to make an adequate showing for a new trial on the: ground of newly discovered evidence.

By the Court.— The judgment of the circuit court is affirmed.