Bean v. Percival Copper Mining Co.

Wisconsin Supreme Court

Bean v. Percival Copper Mining Co.

87 N.W. 465, 111 Wis. 598, 1901 Wisc. LEXIS 55

DecidedOctober 15, 1901

StatusPublished

This text of 87 N.W. 465 (Bean v. Percival Copper Mining Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bean v. Percival Copper Mining Co., 87 N.W. 465, 111 Wis. 598, 1901 Wisc. LEXIS 55 (Wis. 1901).

Pincite

Opinion

Bardeen, J.

The plaintiff sued on a cause of action for work, labor, and services performed for the defendant at an agreed price per day. He was allowed to prove an entirely different cause of action, against defendant’s constant objection. The contract offered in evidence was clearly inadmissible. It was distinctly error to admit it under the pleadings as they then stood. No doubt the court might have allowed an amendment of the complaint when the evidence was offered, and proceeded with the trial, if the defendant made no showing of surprise. No application for amendment was made, and, of course, no opportunity was given defendant to say whether it was prepared to continue the trial and to meet and combat the changed conditions. Indeed, not until the court charged the jury was the defendant really advised as to the position the court would take with reference to the defendant’s liability under the proof. It was not a mere question of variance of proof. It was the substitution of a new and different cause of action, based upon. a state of facts entirely different from those stated in the complaint. There was absolutely no proof to support-the allegations of the complaint. When the defendant was given to understand the real attitude of the court, it was too late to urge surprise, or to do anything except protest as it did. The rules of law governing such matters are plain and well settled, and we cannot sanction such am unwarranted departure therefrom.

By the Court.— The judgment is reversed, and the cause is remanded for a new trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Bardeen, J.

The plaintiff sued on a cause of action for work, labor, and services performed for the defendant at an agreed price per day. He was allowed to prove an entirely different cause of action, against defendant’s constant objection. The contract offered in evidence was clearly inadmissible. It was distinctly error to admit it under the pleadings as they then stood. No doubt the court might have allowed an amendment of the complaint when the evidence was offered, and proceeded with the trial, if the defendant made no showing of surprise. No application for amendment was made, and, of course, no opportunity was given defendant to say whether it was prepared to continue the trial and to meet and combat the changed conditions. Indeed, not until the court charged the jury was the defendant really advised as to the position the court would take with reference to the defendant’s liability under the proof. It was not a mere question of variance of proof. It was the substitution of a new and different cause of action, based upon. a state of facts entirely different from those stated in the complaint. There was absolutely no proof to support-the allegations of the complaint. When the defendant was given to understand the real attitude of the court, it was too late to urge surprise, or to do anything except protest as it did. The rules of law governing such matters are plain and well settled, and we cannot sanction such am unwarranted departure therefrom.

By the Court.— The judgment is reversed, and the cause is remanded for a new trial.

Cite This Page — Counsel Stack

Bluebook (online)

87 N.W. 465, 111 Wis. 598, 1901 Wisc. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bean-v-percival-copper-mining-co-wis-1901.