77 Wis. 329 | Wis. | 1890
The following opinion was filed June 21, 1890.
This action was commenced in justice’s court to recover a balance alleged to be due from the defendant, Fritsohe, to the plaintiff StuoJcey, for drilling a well for the defendant. Plaintiff recovered in the justice’s court, and Fritsohe appealed to the circuit court. In that court the defendant filed an amended answer’, denying the indebtedness, and setting up that the contract for drilling the well, and under which the plaintiff acted, was a contract made with the plaintiff and his brother, William Stuckey, as partners in business, and that by such contract they agreed to drill a well 300 feet deep unless tfiey procured a flow of water at a less depth or unless the defendant directed them
The real contest on the trial of this case was whether there was a contract between the plaintiff and the defendant by which plaintiff agreed to drill the defendant a well 300 feet deep unless he procured a flow of water before reaching such depth or unless sooner discharged by the defendant. The plaintiff denied that the agreement was to drill to the depth of 300 feet or any particular depth. After a careful consideration of the evidence, we think there is a clear preponderance in favor of the agreement to drill 300 feet unless a flow of water was sooner obtained or unless the defendant consented for any reason to stop short of the 300 feet. The evidence shows that, after the plaintiff had drilled about 140 feet, his sand bucket stuck in the well, and it was difficult to get it out and continue the drilling. The evidence on the part of the plaintiff tends to show that at this time plaintiff had a talk about continuing the work further, and the probability of getting a flow of water was discussed between the parties, and that, in view of the doubt upon that point, the defendant consented that plaintiff should stop work upon the well until he could procure a survey of the locality in order to determine whether it was probable that a flow of water could be got at that place; that thereupon the plaintiff stopped work on the well, and the defendant, though requested to pay for the work done, had neglected to do so, and had neglected to procure a survey of the locality, as he said he would do, until after the commencement of this action. And there is no satisfactory evidence that the defendant, at any time before the com
The first and second errors alleged are that the verdict is wholly unsupported by the evidence. We think there is no merit in these objections to the verdict. If the testimony of the plaintiff and his witnesses was believed by the jury, then the verdict is supported by their evidence. The weight of the testimony and the credibility of the witnesses were questions for the jury and not for the court. But it is in some way claimed that, because the defendant alleged in his answer that the contract was made, not with the plaintiff alone, but with the plaintiff and his brother William as partners, and as this allegation was not denied by affidavit, as required by the statute (see sec. 4191, R. S.), no verdict or judgment could be legally rendered in favor of the plaintiff alone. There are, we think, two sufficient answers to this contention:
First. The question of the partnership of the plaintiff with his brother William was litigated on the trial without objection on the part of the defendant, and he cannot now avail himself of any advantage given him by the statute. The fact that it was so litigated without objection gives plausibility to the statement of the learned counsel for the respondent that the partnership was in fact denied by affidavit as required by the statute, but that by some oversight the affidavit was not sent up as a part of the record. However that may be, the consent to litigate the question without objection was, we think, a waiver of the statutory presumption arising upon the pleadings. The clear preponderance of the evidence was, we think, in favor of the claim that there was no partnership.
Second. Had the evidence shown that there was a partnership contract as alleged in the answer, still the evidence
Many objections and exceptions were taken to the introduction of evidence on the part of the plaintiff, as well as to the rejection of evidence offered on the part of the defendant. After a careful reading of all the evidence in the case, we are of the opinion that the rulings of the court upon the several objections and offers were not erroneous. Most of the exceptions and objections related to matters which might tend to prove a partnership between the plaintiff and his brother William, and, as we have said above, this matter of partnership was wholly immaterial, except in so far as it had a bearing upon the question of how far the declarations of William were admissible as evidence in favor of the defendant. After reading the evidence, we do not find that any material declarations or statements made by William in regard to the transaction were rejected by the court.
Objections and exceptions were made to remarks made by the trial judge during the progress of the trial. These remarks, as they appear in the record, do not present such a violation of propriety on the part of the learned judge as would authorize this court to declare them errors of so grave a character as to justify a reversal of the judgment.
It is also objected that the plaintiff’s counsel was permitted to read to the jury in his closing argument, from the minutes of the reporter, the cross-examination of the de
After the counsel had argued the case to the jury, the learned circuit judge gave no charge or instructions to the jury, but made the following remark: “ I have no charge to give you, gentlemen. Conduct the jury to their room.” Ro exception was taken at the time by the learned counsel for the defendant to the declination of the learned judge to instruct the jury; neither did he request the judge to instruct them generally, nor request that any specific instruction should be given to them. On making a motion for a new trial, the learned counsel for the defendant assigns this as a reason for granting the same, in the following language, as his ninth reason: “ The court erred in not instructing the jury in the law applicable to the case.” The learned counsel for the appellant claims that it is the duty of the trial judge to instruct the jury in every case upon the law of the case, whether requested to do so or not; and he cites sec. 2853, S. & B. Ann. Stats.,
By the Court.— The judgment of the circuit court is affirmed.
A motion for a rehearing was denied September 23,1890.