144 Wis. 632 | Wis. | 1911
It might be said of this case, “Confusion here hath found its masterpiece.” Erom the drafting of the complaint through the trial in the court below up to the final argument in this court such uncertainty exists that the counsel for plaintiff and respondent is unable to state the nature of the action, insisting that it may be an action for money had and received, an action at law to recover damages for breach of contract, or an action in equity; while the trial court at the opening of the trial first declared it an action in tort, after the trial had made considerable progress declared he did not know whether it was an action in tort or upon contract, and at the close of the evidence of the plaintiff on motion for non-suit ruled as follows:
“Yesterday I was inclined to think, after reading it only once, that it was an action in tort. Today I do not find a single allegation in it that is characteristic of an action ex delicto. I am clearly of the opinion now that the complaint is upon implied contract.”
But later on he instructed the jury as follows:
“In this case there is really but one question for you to determine : Did the plaintiff rely entirely upon the defendant in the selection and entry of the lands in question ?”
“If tbe representations made by the defendant to the plaintiff were material and false, and the plaintiff did not know, or have present means of knowing, that they were false, and the-plaintiff relied upon them as being true, and the defendant knew this, and the plaintiff suffered damages thereby, it is immaterial whether the defendant made the representations wil-fully or intentionally or not; for he had no right to make even a mistake in facts so material to the contract, except under the penalty of responding in damages.”
He also at request of defendant instructed the jury as follows :
“The plaintiff in this action cannot recover anything from the defendant unless you find that the defendant, or his agent,made false representations to the plaintiff. The plaintiff cannot recover in this action unless you find he' actually relied upon the false representations of fact made by this defendant. The plaintiff cannot recover in this action unless you find that because of the defendant’s misrepresentations, or those of his. agent, the plaintiff parted with his money. To entitle the-plaintiff to recover in this action, it must at least be shown from the evidence that the plaintiff has paid something to the-defendant, or his agent, which in equity and good conscience he ought to return. There is in this case no question of fraud' on the part of the defendant. Plaintiff does not complain or charge the defendant himself with any fraud or deceit in this, case. Unless the proof shows to your satisfaction that the-defendant, or his agent, made some false representations to the plaintiff upon which the plaintiff relied, and had a right to-rely upon under other instructions given the jury, the plaintiff cannot recover in this action.”
He also told the jury if they found for the plaintiff they must assess the damages at $350,. Notwithstanding this confusion we are to search the pleadings and evidence, and, if a right of recovery upon any ground exists, permit the plaintiff to assort that right and the defendant to interpose against such assertion any legitimate defense he may have. The plaintiff as a witness acquitted the defendant of any fraud in
But it is contended that the judgment may be supported as. a judgment for damages for breach of contract. The charge above quoted would be quite erroneous in such an action. The only contract which the evidence in any wise tends to support is a contract of service; that is to say, the defendant should perform services for the plaintiff in aiding the latter to locate government land. The evidence is quite weak and unsatisfactory with reference to any contract of employment, but there may be enough to take the case to the jury on this-ground. This evidence tends to show that the defendant, answering a newspaper advertisement, was directed to one Taylor, with whom he had no.previous acquaintance. Taylor-professed to know of valuable timber lands which might be entered under the so-called Stone and Timber Act. The defendant undertook, without any express agreement for compensation, to aid the plaintiff in locating some government land under this act. The plaintiff informed the defendant that he, plaintiff, was ignorant of the business of locating-lands and knew nothing about timber claims or about the surveyor’s marks and was dependent absolutely upon the defendant. Defendant replied that he was not a timber estimator but did understand surveyors’ marks, and would see that plaintiff was not deceived in his location. After examining-some land shown to them by Taylor and what appeared to be marks of the government surveyor on trees, all parties went to the office of the register. Here, after some doubt on the-part of defendant and some examination and discussion, defendant represented that the land whieh had been examined by plaintiff, defendant, and others and pointed out to them by-
This case is very like Simmons v. Putnam, 11 Wis. 193, where there was a contract binding the defendant to go upon
“Whoever bargains to render services for another undertakes for good faith and integrity, but he does not agree that he will commit no errors. Eor negligence, bad faith, or dishonesty he would be liable to his employer, but, if he is guilty of neither of these, the master or employer must submit to such incidental losses as may occur in the course of the employment, because these are incident to all avocations, and no one, by any implication of law, ever undertakes to protect another against them.” Nelson v. C., M. & St. P. R. Co. 60 Wis. 320, 326, 19 N. W. 52, quoting from Page v. Wells, 37 Mich. 415; 26 Cyc. 969, 970.
If, however, the servant contracts for particular or extraordinary skill or ability in the line of work, he must satisfy the contract, and a higher degree of diligence and skill will be required of him. Wenger v. Marty, 135 Wis. 408, 116 N. W. 7.
*638 “One who accepts employment to perform skilled labor impliedly undertakes that he possesses the. requisite skill.” Norris v. Cargill, 57 Wis. 251, 15 N. W. 148.
There may also be a fraudulent breach of the contract of service, as is shown by the rule that the employee owes to his ■employer the duty to serve him honestly and in good faith. This ground of liability is perhaps what the plaintiff was aiming at and more nearly-fits the evidence in the case and the ■charges in the complaint than any other. It must be manifest that the real questions in the case, viz.: whether there was a ■contract of employment, whether the defendant faithfully and in good faith performed within the foregoing rules, and if he ■did not what was the amount of plaintiff’s damages, were not properly submitted to or passed upon by the jury.
By the Court. — Judgment reversed, and the cause remanded for a new trial.