48 Wis. 643 | Wis. | 1880
The complaint is for work and labor, and for money paid and expended. The answer sets up that the plaintiff was unskillful, and that his services were valueless; that he had received certain payments; and that his conduct in the business of his employment was such that the defendant suffered damage, which, by an amendment of the answer is alleged to be the sum of $3,500, and is stated as a counterclaim; and the answer prays for an accounting by the plaintiff.
The appellant claims here that the circuit court erred in not adjudging such an accounting. Whether this is a proper case for an accounting by either party, we do not decide. The cause having been submitted to and tried by a jury, and all of the matters in controversy by the pleadings having been fully considered and passed upon by the jury, without any objection on the part of the appellant, this objection to the verdict and judgment must be deemed to have been waived. Leonard v. Rogan et al., 20 Wis., 540.
All questions raised as to the effect of the evidence, as supporting the verdict or otherwise, and so fully and ably discussed by the learned counsel on both sides, cannot be con
The casual remark of the learned judge, on the trial, in ruling upon the admissibility in evidence of the Arcadia yard books kept by one Hollenbeck, and the "Whitehall books kept by one Earl, is excepted to, as a part of the charge of the court to the jury, and was not objected to at the time, so far as the printed case shows. This practice cannot be sanctioned; but it is sufficient to say that the remark of the judge in respect to these books, that “ they don’t affect the plaintiff one whit,” appears to have been strictly correct; for the books, as such, had not been verified by those who kept them.
The instruction asked by the learned counsel of the appellant, the refusal of which is assigned as error, was as follows: “If the jury find from the evidence that the services of the plaintiff in keeping the books of the defendant were negligently and unskillfully performed, by failing to keep the same in such a manner as to show the true state of accounts therein pretended to be kept, and entered therein, in such case he is not entitled to recover at all.” This instruction' is somewhat obscure; but the court seemed to understand it to mean, and we think correctly, that if the plaintiff, in keeping the books, was so negligent and unskillful that the state of the accounts between the parties could not be ascertained from the books, then the plaintiff could recover nothing for his services. In this view the instruction was clearly incorrect, for it ignored all other evidence of the plaintiff’s services and their value.
Exception was taken to the question, “ State whether the plaintiff was a valuable man to the defendant for the employment in which he was engaged.” The question was clearly proper, as understood and explained by the court, as meaning whether the plaintiff was competent or qualified for the business in which he was engaged. Or, if understood as meaning whether the plaintiff was skillful, faithful or serviceable in such employment, it is not perceived why the question was not a proper one to rebut the attempted proof of the plaintiff’s negligence and want of skill in his employment.
This cause, both in the pleadings and proofs, was difficult and complicated in the extreme, and not easily or very satisfactorily tried with a jury; and we think the circuit court was remarkably judicious in its conduct and rulings.
By the Court. — The judgment of the circuit court is affirmed, with costs.