162 Wis. 603 | Wis. | 1916
The following opinion was filed Eebruary 22, 1916:
We think that the word “clear” in this-contract is so far ambiguous in its meaning that parol evidence of the circumstances surrounding the' transaction was admissible to show the sense in which it was used. The land had been “cleared” once. It was (as described by the defendants’ witness Burdick) an old pine slashing grown up to-poplars which could be easily plowed under. Now, did the-word mean simply to remove the poplar saplings and brush which had grown up since the first clearing, or did it mean also to remove the old stumps and down timber which remained from the original clearing so that the land could be put under plow? Let it be conceded that the word “clear”' as applied to ordinary wood or timber land has a definite' meaning, to wit, “to remove the timber but not the stumps” (Seavey v. Shurick, 110 Ind. 494, 11 N. E. 597), it is very evident that it must mean something else when applied to cut-over land where the timber has been already removed and there is nothing left but stumps and the usual crop of small poplars and brush. There is no error, therefore, in receiving testimony as to the circumstances surrounding the transaction which tended to show in what sense the parties used the' word, and there was certainly enough testimony of this nature to justify the conclusion of the jury.
The only other serious question raised in the trial was the question of the damages resulting from failure to clear the-land. On this question the trial judge instructed the jury that the damages should include the reasonable cost of completing the clearing so as to bring it, within the requirements of the contract, also the reasonable value of the use of the land for one season, providing that the plaintiffs lost such use as the direct result of defendants’ breach of the contract. If it is understood that “reasonable value of the use” means fair rental value, there seems no doubt that these instructions
We find it unnecessary to decide the question. Ey the overwhelming preponderance of the evidence it appeared that the reasonable cost of clearing the land, together with its reasonable rental value, had it been cleared as the contract provided, aggregated at least the sum fixed by the jury as the •damages for failure to clear the land, hence there was no prejudicial error in the instruction in question even conceding it to have been erroneous.
The objection is now made for the first time that the evidence shows that the contract was made on Sunday and hence should not be enforced because contrary to the policy of our law. A sufficient answer to this objection is that the complaint alleges and the answer admits that the contract was made on a secular day, and this admission has never been withdrawn. While this might not be conclusive if it appeared beyond doubt that the contract was fully completed on Sunday (Jacobson v. Bentzler, 127 Wis. 566, 107 N. W. 7), it certainly makes it necessary that the proof of Sunday execution of the contract be so complete as to leave no room for doubt. While the proof here makes it quite certain that the paper was drawn and signed on Sunday, there is no proof •as to when it was delivered, and delivery was doubtless essential to make it a complete contract. Non constat that it was delivered on Sunday, though signed on that day. The presumption would rather be (in support of the admission in the pleadings) that it was delivered by mail on a secular day and thus became a valid contract. Gibbs & S. M. Co. v. Brucker, 111 U. S. 597, 4 Sup. Ct. 572.
In justification of these charges the plaintiff relies chiefly on sec. 2959, Stats., which provides in substance that where-a fee is allowed to one officer for the performance of a service, other officers who are authorized by law to perform the same-service shall receive the same fee. The difficulty with regard to the charge for service of the summons and complaint is that a constable is not in his official capacity required or authorized to serve them. The circuit court summons is not a writ or process issued out of court, but simply a notice-given to defendant by the plaintiff. Mezchen v. More, 54 Wis. 214, 11 N. W. 534. The statute makes special provision that the summons and complaint in a circuit court action may be served by the sheriff “or by any other person not a party to the action” (sec. 2635, Stats.). The duties of a constable as prescribed by sec. 842, Stats., do not in terms-include the service of these papers, and we think that the provisions of sec. 2635 must be held exclusive. Hence in serving them the constable acts simply as a private person, not as-an officer, and is not entitled to official fees therefor. As to the service of the subpoena the situation is different. There-is no statute providing for the service of a circuit court subpoena by the sheriff alone, and the section prescribing the duties of a constable (sec. 842) makes it his duty to serve any “writ, process, order or notice . . . lawfully directed to or required to be executed by him by any court or officer.”' This is substantially the same provision as sub. (4) of sec..
The fees charged for copying and serving the summons and complaint aggregated $5.60 and these were erroneously allowed. The balance of the item complained of, being the amount charged by a constable for fees and mileage in serving the subpoena at the same rate allowed a sheriff, was proper. The judgment must be modified accordingly.
By the Qourt. — Judgment modified.by reducing the same as of its date in the sum of -$5.60, and as so modified affirmed. No costs allowed except the fees of the clerk of this court to be paid by respondents.
A motion for a rehearing was denied, with $25'costs, on April 11, 1916.
