Norden v. Jones
33 Wis. 600
Wis.
1873
Check Treatment
Dixon, C. J.

This case, arose in a justice’s court, where the judgment, exclusive of costs, did not exceed fifteen dollars; . and the appeal here is from a judgment of the circuit court against the defendant for the sum of $4.08 damages, besides the costs of the action. There is thus added another to the long list of examples which the records of this court afford, of that earnest devotion to principle which so strongly characterizes the people and bar of thiá state; and the case suggests that we are at least entitled to a small share of the same praise bestowed by an eminent judge of a sister state upon the people of his commonwealth for their fidelity to principle еxhibited under like circumstances. In- Pennsylvania Canal Co., v. Bentley, 66 Pa. St. R., 32, Judge Shaeswood says: “ This controversy is about a mule. Some great principles are supposed to be involved, which it is necessary that the court of last resort should settle. We often hear this alleged in cases in which it must be evident that the expenses will exceed the amount in dispute, or at least one would think the play not to be worth the candle. This ardent attachment to principle seems to be a marked characteristic of the people and bar of this state, and would be highly laudable if it were not accompanied with some counterbalancing public evils ; such as the great increase of the business of this court, and the harrassing of suitоrs. There were no less than thirteen points presented in writing to the court below, and the learned judge was required to navigate through all the shoals and narrows of negligence, and evidence of negligence; of contributory negligеnce, and the onus probandi. He did so, however, with *603remarkable prudence and skill; and tbe printed argument of the plaintiffs in error has failed to convince us that he was guilty of a single error.” The case before us is not so prolific of points, but the small sum in controversy dеmonstrates more clearly “ the play not to be worth the candle.”

The first error assigned is, that the circuit court ought not to have received and acted upon the further or amended return sent up by the justice. It is said that such return was irregular and objectionable, because it was not made within thirty days after the service of the notice of appeal, and because it was not directed by the court; and sections 212 and 214 of chapter 120, R S. (2 Tay. Stats., 1398, §§ 230, 232) are citеd. The provision of statute first cited is obviously directory, and a return, not otherwise defective or improper, ought not to be rejected merely because it was not made until after the lapse of more than thirty days from the time of service of the notice of appeal. And the objection that the court did not direct the return to be made is answered by the statement that the court received and acted upon it, which was equivalent to a previous order requiring the justice to make it. It was a ratification of the act of the justice in doing that without an order of • the court, which the court would otherwise, on proper application, have been compelled to оrder the justice to do.

The amended return of the justice having been properly received, the second and only other error assigned is, that the circuit court improperly reversed in part and affirmed in part the judgment for damages in the justice’s court, from which the defendant appealed to the circuit court. Upon looking into the return of the justice, the circuit court found that he had erroneously rejected an item of $6.00 in the account or counterclaim of the defendant, which should have been allowed against the demand of the plaintiff, and which, being allowed by the circuit court, reduced the judgment in favor of the plaintiff, as rendered by the justice, from the sum of $10.08 damages to $4.08. Thе circuit court accordingly reversed the judgment of *604tbe justice as to tbe sum of $6.00, parcel of tbe damages, and affirmed it as to the residue, with costs in that court. After a careful examination of the question of law involved in tbe rejection of the $6.00 item, we are of opinion that the circuit court was correct in holding that the justice was in error when he excluded the evidence offered by the defendant in proof of the item. It was proper, therefore, for the circuit court to reverse the judgment of the justice, but in so doing the court could not reverse in part and affirm in part, as to the damages which had been recovered by the plaintiff.' The law was so held in Detling v. Weber, 29 Wis., 559. There can be no dоubt that some legislation is greatly needed upon this subject; but until the same is had, the rule of the case referred to, and others of an earlier date in this court, must prevail in appeals of this description. The judgment rendered by the justicе should have been wholly reversed, instead of having been in part affirmed, as was done by order of the circuit court.

The question presented on the rejection of the $6.00 item is an interesting one, upon which there exists considerablе contrariety of opinion and decision, both in England and this country. It was a charge of that sum made by the defendant against the plaintiff for pasturing the plaintiff’s cattle, which the defendant testified the plaintiff had let into his, the defendant’s, field, by lаying down defendant’s fence for that purpose. The objection sustained by the justice was, that the laying down of the fence and turning in of tbe cattle was a trespass ‍​​​‌​​‌‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌‌​​‌‌‍on the part of the plaintiff, which could not be brought in or proved аs a set-off or cross-demand in this form of action, but that the defendant must resort to his action of trespass against the plaintiff to recover the damages which he has sustained. It is not to be denied that there are numerous decisions оf most respectable courts sustaining this view, while on the other hand there is an equal weight of most respectable authority also for holding that a promise to pay will be implied under such circumstances, upon which an action of assumpsit may *605likewise be maintained. The question being new in this court under our present statutes, we are at liberty to adopt such rule as in our judgment will best subserve the ends of justice, which is or ought to be the object of all rules laid down in the course of judiciаl proceedings. The cases of Conklin v. Parsons, 1 Chand., 240, and Pierce v. Hoffman, 4 Wis., 277, were controlled by the language of subdivision 3 of seG. 1, ch. 94, R. S. 1849, then in force. That subdivision was omitted altogether in the present revision, thus making a material change in the law of set-off. R. S. 1858, ch. 126, sec. 1 (2 Tay. Stats., 1448, § 1). Thе language of the court in Conklin v. Parsons favors rather than disfavors the general right to waive the tort and sue in assumpsit for a mere conversion of property. And see Keyes v. Railway Co., 25 Wis., 691.

Mr. Nicholas Hill, in his notes to the cases of Putnam v. Wise, 1 Hill, 240, and Berly v. Taylor, 5 Hill, 584, has collected nearly all the adjudications up to the time of publication (1844), as well those which hold the narrower rule, which in general limits the right to waive the tort and sue in assumpsit to cases where goods have been taken from the plaintiff and sold by the wrongdoer and the money received by him, as those which establish a more liberal principle by declaring the right of the injured party to waive the tort and bring assumpsit in a variety of cases where the fruits of the trespass or wrong have not become or been turned into money or its equivalent in the hands of the tortfeasor. Judge Redfield, in Centre Turnpike Co. v. Smith, 12 Vt., 217, resolves the cases coming within the narrower rule into four classes, to which the case of Jones v. Hoar, 5 Pick., 290, adds a fifth class not named by Judge Redfield. The underlying question in all the cases obviously is, When and under what circumstances ‍​​​‌​​‌‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌‌​​‌‌‍will the law imply a promise on the part of the defendant to pay ? “ It is a principle well settled,” say the court, in Webster v. Drinkwater, 5 Greenl., 322, “ that a promise is not implied against or without the consent of the person attempted to be *606charged by it. And where one is implied, it is because the party intended it should be, or because natural justice plainly .requires it, in consideration of some benefit received.” Tested by the latter as the governing principle upon which the -law raises a promise to, pay, it is very obvious that the more liberаl rule is the correct one, and that which should prevail.

And such is the rule for which Mr. Hill contends, of whose great ability and acknowledged attainments in his profession ' it is unnecessary for us here to spehk. It will be conceded by all that,his opinion is entitled to very great weight, sustained as he is by the language of the court in the two cases to which his notes are appended, as well as by other decisions to which he refers, and especially those in New Hampshire and Maryland. Hill v. Davis, 3 N. H., 384; Stockett v. Watkins, 2 Gill & John., 326, 342-3. We give the concluding portion or paragraph of his note to the first case, with his citations, as they appear in the volume above, referred .to. He says : “ The .above cases from the Maryland and New Hampshire rеports are sustained by the dicta of Jackson,'J., in a Massachusetts case decided some time previous to Jones v. Hoar, supra (Cummings v. Noyes, 10 Mass. R., 433, 435-6). And see the observations of Maison, senator, in' Butts v. Collins, 13 Wend., 153-4; also Ford v. Caldwell, 3 Hill (S. C.), 248, especially the opinion of Richaedson, J;, p. 250. They seem also in accordance with the principle of several English decisions, viz., that the tortfeasor shall not ‍​​​‌​​‌‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌‌​​‌‌‍be allowed, under such circumstances, to set .up his own wrongful intent in disavowal of the-implied promise -which the law would otherwise raise against him. Chitty on Contracts, 6; Hill v. Perrott, 3 Taunt., 274-5, per curiam; Lightly v. Clouston, 1 id., 112, 114, per Mansfield, C. J.; 1 Leigh’s N. P., 4, 5; per Maison, senator, in Butts v. Collins, 13 -Wend., 154-5. Apart from all reasоning of a technical or artificial character, and looking to the substantial ends of justice, it is quite difficult to see why this principle should not be applied in cases like Jones v. Hoar, and Willett v. Willett, supra. *607In neither could tbe defendant have been prejudiced by allow ing tbe plaintiff to sue in assumpsit; on tbe contrаry, tbe practice generally operates to' favor the defendant, as tbe plaintiff thereby foregoes bis right to damages for tbe tort as such, and restricts himself to tbe simple value of tbe property. See per Lord Mansfield, in Lindon v. Hooper, 1 Cowp., 419 ; per Bayley, J., in Foster v. Stewart, 3 Moule and Selw., 201-2; per Maison, senator, in Butts v. Collins, 13 Wend., 156. The de fendant, mоreover, gets tbe right of set-off, which would be precluded by denying tbe plaintiff bis election. Per Heath, J., in Lightly v. Clouston, 1 Taunt., 114, 115. Nor would tbe defendant be likely to suffer embarrassment by the form of pleading. Per Lord Mansfield, in Lindon v. Hooper, 1 Cowp., 414, 419. And clearly be could not be said to incur any hazard from a second action in tort for the same matter. See 1 Phil. Ev., 333, 7th ed.; Rice v. King, 7 Johns., 20 ; McLean v. Hugaren, 13 id., 184.”

And in his remarks upon the second case (5 Hill, 584), he says that “ the observations of the judges'in Young v. Marshall, 8 Bing., 43 (21 E. C. L., 215), are worthy of' attention as illustrating the principle on which the English doctrine rests. The action was for money had and received, ‍​​​‌​​‌‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌‌​​‌‌‍and was brought by the assigneе of a bankrupt, against the sheriff, on the ground that he had wrongfully sold goods belonging to the plaintiff on a fi. fa.; and it was objected that the action should have been trover, especially as the money had been paid over to the еxecution creditor before suit commenced. The court, however, overruled the objection, holding that the plaintiff might but was not hound to go for the tort. Tindal, C. J., there stated the rule to be, that ‘ no party is hound to sue in tort, where, hy converting the action into an action on contract, he does not prejudice the defendant; and, generally speaking, it is more favorable to the defendant that he should be sued in contract, because that form of action lets in a set-off, and enables him to pay money into court.’ Bosanquet, J., denied that the plaintiff who *608brings assumpsit, in sucb case, thereby affirms the acts of the sheriff; ‘ he merely waives his claim to damages for a wrong, and seeks to recover only the proceeds of the sale.’ ”

And still another most material advantage which the wrongdoer derivеs from the waiver of the tort and suit in contract, ‍​​​‌​​‌‌‌​‌​​‌​​‌​​‌‌‌‌‌‌​‌‌​​​​​‌​​‌​‌‌‌​‌‌​​‌‌‍in this state, is freedom from arrest and imprisonment, to which he would otherwise be liable and might be subjected.

We conclude, therefore, that the doctrine of the authorities above quotеd, and ■ for which Mr. Hill contends, is the better one, and must accordingly hold that the justice was in error when he excluded the evidence offered by the defendant in support of the item in his counterclaim against the plaintiff for the pasturage of the plaintiff’s cattle.

The judgment of the circuit court must be reversed, and the cause remanded with directions to that court to reverse the judgment of the justice.

By the Court. — It is so ordered.