Thomas v. Hatch

10 N.W. 393, 53 Wis. 296, 1881 Wisc. LEXIS 245

• Court: Wisconsin Supreme Court
• Decided: November 3, 1881
• Status: Published

Opinion

Lyon, J.

We think the record fails to disclose any error.

The jury found that the contract of hiring mentioned in the pleadings was made on Sunday. It was therefore void, and on proper pleadings the plaintiff would be entitled to recover for his services quantum meruit. The court allowed the complaint to be amended after verdict to agree with the proofs. It was clearly within the discretion of the court to permit the amendment. E. S., 756, § 2830. It does not change the claim substantially, for it still remains a claim for two months’ services. It only goes to the rule of compensation therefor. Moreover, the defendant’s answer tenders an issue quantum meruit — the same issue raised by the amendment. [Neither is it a sufficient objection to the allowance of the amendment that the defendant was or may have been unprepared to' meet the new issue. If it took him by surprise, his remedy was to make that fact appear to the court, and the court would hav.e protected his rights by the imposition of proper terms as conditions precedent to allowing the amendment. The amendment having been properly allowed, the special findings are within the issue and are supported by testimony; and, beyond all question, the judgment is sustained by the findings. The finding of damages to the defend ant."is entirely immaterial, for the reason that the other findings negative the defendant’s right to recover any damages, and the court properly disregarded it and gave judgment for the full value of the services as found by the jury.

By the Court.— The judgment of the county courtis affirmed.