*1 pointed (1958), in Onderdonk v. Onderdonk We out 279, 283, (2d) 323, (2d) that: Wis. 88 N. W. but, . . we could the order as of course reverse custody children in because divorce and minor proceedings public concern, divorce matters we exercising discretionary power.” arе not our This, respondent informed court has been he is out of state and is without funds either to appear person travel to or to coun- Wisconsin hire circumstances, Under these we decline to sel. exercise discretionary pоwer deny reverse, our the motion of appellant, appeal we have considered on its merits.
By Judgment affirmed. Court. — J., part. took no Hansen, Ripon, Respondent, Appellant. v. Diedrich,
Town April 11, 1967
March 2— *3 appellant For the there argument awаs brief and oral by H. Maxwell Manzer of Ripon. respondent
For the there a argument was brief and oral Hayes F. by William Ripon. of J. In of view the established fact that Hanley, the expressly defendant did request not Ripon the town of to question grade grаvel Skyline roadway, Circle the right per- plaintiff to have been turns pleadings prove a of action mitted to to cause amend quantum unjust on meruit or enrichment rather based than oral contract.
The of land defendant was the owner of tract “Skyline pre- referred to In as Circle.” defendant plat Skyline sented for Circle to the board for town approval. approval plat As a condition for the agreed good defendant Diedrich “to have the road in changing any condition so the town not have do will on grade good gravel and to coat of have road so that cars and trucks can travel on the road.” plat approved Ripon
The town of in 1958 county, and recorded in du Lac Fond Wisconsin. approval plat spent Prior defendant Diedrich had provide for in culverts order to $438.50 access Union money expended street. No had been at time gravel for the road.
Upon Ripon the demand of residents the town of in necessary provide 1963 found it a suitable road for living Skyline the residents In Circle. town Ripon spent grade $1,711.65 graveling the road “Skyline known expenditure Circle” and the was billed to the defendant. town blacktopped the year later, road a but Diedrich was not billed for this work.
The defendant Diedrich at no time obliga- denied his *4 tion the Ripon grade to of gravel town to and Sky- the roadway, line provided Circle for in the town board minutes. Defendant testified that he had roadway the graded graveled and plat the before was submitted for recording. Hоwever, later he testified there were no bills graveling before 1957.
The chairman of the town board testified as to the agreement parties and that there was no road— just grade two tracks and no by established Diedrich. the made point the defendant this counsel At following statement: go objections, can to make but this case “I don’t like quantum for con- meruit This is a case of weeks. nothing
tracting performance, to do has with work complaint. any evidence, of and I refer to the We this talking type entirely an different of lawsuit.” about permitted the and we witness answer objec- properly in the of believe so view of form counsel’s quantum tion and of his admission that it case meruit. testimony support believe the We was relеvant implied consent to have the road the constructed after town Diedrich’s failure construct it a five- within year period. agreement Here the involved the construc- roadway tion of a knew, and the defendant or should have known, if rоadway, that he failed to construct the the Ripon necessarily of town would to do have so. provisions Under the of 263.28, Stats., 269.44 secs. properly the trial court the allowed motion to amend pleadings proof. to the conform 269.44, Stats.,
Sec. allows trial court to amend pleadings judgment provided even after that the trans- pleading action in the amended is connected with subject matter of the action original which the pleading was based.
It is pleadings evident that both in the instant case out of the arise fact that Ripon the town of believed that obligated the defendant Diedrich was to construct a road pursuant to the platting conditional and that in the event this, he failed Ripon to do of town could construct the road for him and submit the bill. present
The same facts are situations, both and it certainly is in the justice furtherance of to allow the pleadings to amend town its so plaintiff town has cause action theory under a implied contraсt.
464 any allegation provides in a 263.28, Stats., that
Sec. proof shall he pleading element of at variance with an pleading in the deemed immaterial unless variance prejudice. party misleads his adverse The trial court in its memorandum decision stated: uncomplicated and “The facts in this case are both pre-trial parties trial, a were before conference adversed known and the before was held were well trial. This facts court does not see that the defendant would be misled amending comрlaint . . . .” defendant, Also, it must be Died- considered that rich, put granted on if was notice that the court pleadings, motion amend the trial then would give judgment party other, depending to one or the what the evidence established. time, following
It was incumbеnt at Diedrich that timely objection, his adjournment, also ask for an continuance, just or properly terms so he could de- case, providing fend had a defense. defendant-appellant burden was on the to ask the exactly trial court for what he wanted or else it should be considered be waived. defendant, Diedrich,
If
evidence,
had further
way
in the
defense,
of a
it
brought
should have been
to the trial
court’s attention.
elementary
It is
law that issues cannot
be raised for the
appeal.
first
time on
Hastings
See
Realty Corp. v.
(1965),
Texas Co.
305,
28
(2d)
Wis.
317,
318, 137
(2d) 79,
N. W.
Heating
Herro v.
Plumbing
&
Corp. (1931),
Finance
256,
206
264,
Wis.
Had defendant raised in evidence, rebutting perhaps con that he had additional stituting defense, the trial a it then have been for would order, if a the case was in to decide continuance of and that decisiоn would then been reviewable. See have (1928), 196 Crombie v. Immel Construction Co. Wis. 319, 322, 220 N. 186.W. surprise.
Defendant does not claim He did not ask for any any adjournment. or terms Under such situation allowing the trial court not err in did the amendment to pleadings. Fidelity Musha v. United & States Guar- anty 176, (1960), (2d) 10 184, 185, Co. Wis. 102 N. W. (2d) 243; Duffy 146, (1940), 142, 147, v. Scott 235 Wis. 292 N. 273.W.
Defendant could have moved in the alternative ad- present any ditional time to other defenses in the event grant plaintiff’s the court decided motion. He failed certainly do so and proof was aware was in parties and that both had rested their cases. defendant’s defense the cause of action was that provided grading graveling Skyline and Circle roadway plat at the time the approved. However, clearly the evidence established that defendant did not grade gravel or the road as claimed. He partial job. did a
Appellant Diedrich cites two cases which he claims support for his contention that it was error to allow the pleadings to be amended. In Rhodes v. Shawano (1950), Co. 256 Wis. Transfer
291, (2d) 41 288, W.N. this court held that it was error pleadings to allow the to be amended litigants because the apprised charges against were not of the they which must Rhodes, supra, defend. In appellants never knew they being by wеre the plaintiff, sued so, therefore, contributory negligence they up a defense never set clearly part plaintiff. dis- on the This situation is tinguishable from instant case. 541, (1955), (2d)
Omer v. 68 N. Wis. W. Risch Rhodes, swpra, is a case and in Omer the mo- similar properly tion tо amend was also denied. approv-
The defendant induced the town of into ing Skyline plat by agreeing Circle to construct good road, graded graveled, that the so town would any changes. make not need to great The truth of the matter as established weight complete of the evidence is that there was no road any money expended by and that defendant on the road *7 provide ingress for was the first 300 feet in order to and egress Eckstein, for purchasers Mr. Butzin and Mr. the lots, 17, of thе 11 respectively. first two lots No. and The placed bills in evidence that show defendant Diedrieh spent $1,671. However, they clearly reveal that of $719.19 grates pipes, that amount was used for purposes and for other than road constructiоn. finding
The trial court stated in fact, its of 7,No. follows: “7. That the keep defendant failed to his December agreement with the Town Board in that the road passable, necessitating repair
was not the by Town; the that roadway sixty was not orally agrеed feet wide as defendant, the but one passable was lane and not to trucks; cars and that open the road through was not traffic and plow the Town could not the road to remove snow.” finding This clearly supported is by the credible evi- dence.
We conclude that under the evidence the trial court should have found the existence of a implied contract law, wherein the impliedly agreed defendant that if he perform agreement failed to good to cоnstruct a road put the road hill of could in the the town for the defendant materials services. theory implied of con- affirm the trial court on the
We theory unjust tract rather than the of enrichment. Judgment By the affirmed. Court. — J., part. took no Hansen, (dissеnting). If of J. the amendment
Hallows, complaint given is allowed defendant should be opportunity put to in his defense to the amended com- plaint. pretrial conference, The which has for of one its purposes issues, the clarification of should have resulted complaint in an of the amendment and avoided what happened However, plaintiff in this case. to went allegations quantum meruit, trial on which it did not prove, attempted prove objections and what it over the radically of the defendant awas different cause of action. At the time of submission case for determination amend, a motion was opposed by made which was defendant. The matter taken under advisement. To year allow this amendment after the case is submitted prejudice determination the is de- fendant. theory of the cause of action admissibility and the subjects disagreement evidence during were *8 pleading
trial. practice Loose should not be en- couraged by tardy application of secs. 269.44 and 263.28, Stats. Both justice these sections aid application giving their without the defendant a chance pleading to defend the unjust. amended think is I do not anticipate rulings defendant must adverse the trial put nonpleaded court or in a defense to a cause of action protect in order to himself.
Furthermore, proof does not sustain a cause of unjust action either for enrichment or on implied an promise road, respectivе grounds pay for majority opinion justify which the trial and the Unjust inapplicable amendment. enrichment an doc- is unjust trine because it defendant assumes the received unjust benefit which in fact not true. If is enrichment nearly applicable here, еvery promise is then breach of may unjust be turned into an enrichment case. thinkWe implying the court inis error in the defendant consented to the town’s construction of the road. The town never notified the defendant to construct the road and the power stop Knowledge defendant had no the town. the defendant that if failed to construct the road that the town would not is for a basis consent. most, proof damages
At showed for a breach of an alleged promise to construct the road. The case should proceedings. be sent back for further error, Plaintiff v. Defendant in error. Banas, State,
[Two cases.] April 11, 1967. March 3—