131 Wis. 613 | Wis. | 1907
As a preliminary defense appellants argue that the contract sued on is void both because of plaintiff’s incapacity as a married woman and because of the statute of frauds avoiding parol contract for conveyance of any interest in real estate. The contention cannot be sustained. Neither the statute of frauds nor plaintiff’s marital status presents any obstacle to the. validity of defendants’' promise to pay a sum of money upon a sufficient consideration.- A fully executed release of her interest in real estate, even inchoate, is such consideration, whether her executory promise so to do would be or not. Watters v. McGuigan, 72 Wis. 155, 39
Another preliminary defense is that of champerty and maintenance predicated upon what appellants’ counsel considers undisputed evidence that plaintiff’s poverty was so com.plete as to preclude any reasonable expectation on the part of her attorneys that she could pay, or reimburse to them, any expenses or costs that they might advance, except upon the contingency of a recovery in this action. The evidence negatived any express agreement by the attorneys to advance or defray any such costs or expenses, aná the testimony of both plaintiff and her attorneys was that she expected to pay them and they expected to be paid, and there was perhaps some evidence of at least her possible ability to pay something. But, even conceding that the evidence of plaintiff’s complete poverty was either undisputed or overwhelming, we cannot assent to the proposition that such fact necessarily established a champertous agreement on the part of the attorneys to assume the burden of this litigation. Insolvency or poverty at any time is not absolutely exclusive either of the ultimate payment of honest debts or of the contingency that friends might be willing to aid; or, indeed, that she might be able to obtain, at least in large part, the necessary service'of officers and attendance of witnesses by some other means than the advance of fees therefor by her counsel. While the fact of poverty might, in connection with other facts and circumstances, be evidentiary as to the true understanding or agreement between client and attorney, it is of no such conclusive or irresistible effect as contended for by appellants, and we cannot say that'the court’s conclusion as to whether there did exist a champertous agreement in this case can be set aside.
The trial of this action was pervaded by much of confusion, and the instructions, many of which were excepted to and assigned as error, very imperfectly presented to the jury the is
.On the second question the court instructed that if the jury answered the first question “No” they must, in his opinion, answer the second question “Yes.” This was erroneous, because included in the second question was not merely the concrete issue whether plaintiff signed the deed in consideration of $50, or, as an alternative, upon the defendants’ promise to pay over to her proceeds of some sale, but also the question
The instruction with reference to the fourth question was' erroneous in that it incorrectly understated the amount contended for by appellants.
The instruction with reference to the fifth question so-entirely confused defendants’ claim that a certain team of the agreed value of $500, in the proceeds of which plaintiff should have no interest, was included in the sale at a gross price of $2,800, that we can feel no assurance that the jury intelligently passed thereon.
As to the sixth question the amount was obviously increased some $20 by instructing the jury, to find the reasonable value of certain personal property, when, under the alleged contract, defendants were to account only for the proceeds thereof on sale, the amount of which, as also the fact of sale, was established by undisputed evidence.
The most serious difficulty we have encountered in reaching a conclusion that the rights of the parties can in any wise be determined from this verdict arises from certain remarks of' plaintiff’s counsel in the course of his argument to the jury. The most serious are as follows: “But, gentlemen, remember-that this is a poor woman, as brought out by the evidence.” Upon objection being raised to this the court ruled that it was not proper, and that poverty was not proper to be considered or commented on to the jury at all. Again, counsel asserted that “$500 of the indebtedness was not honest indebtedness.” There was no evidence whatever to impugn the integrity of' any $500 claim which the defendants made against the prop
AJ.1 of tbe errors thus far commented upon, except possibly those with reference to misconduct of counsel, it will be observed, could have no effect upon tbe verdict or judgment save by way of enhancement of tbe recovery by inclusion-therein of proceeds of personal property upon tbe farm, and tbe prejudicial effect of tbe remarks of. counsel may well be believed to have been measured by some excessive allowance. Hocks v. Sprangers, 113 Wis. 123, 87 N. W. 1101, 89 N. W. 113. It is, of course, highly desirable that litigation should be terminated, and, if tbe prejudicial effect of errors can be obviated by diminution of tbe amount of tbe recovery, justice- and tbe interests of both parties will thereby be promoted. We think it plain from an examination of plaintiff’s evidence that she nowhere testified that defendants agreed to account for or pay to her proceeds of any personal property; that tbe utmost of her contention was that they were to pay her pro-
By the Court. — Judgment modified by reducing the amount of damages as of its date to $421.92, and, as so modified, is-affirmed; appellants to recover costs in this court.