Vollmar & Below Co. v. Bayfield Mill Co.

131 N.W. 899, 146 Wis. 412, 1911 Wisc. LEXIS 150

• Court: Wisconsin Supreme Court
• Decided: June 1, 1911
• Status: Published

Opinion

KeRWIN, J.

The facts in this case are fully set forth in the foregoing statement. The errors assigned and relied upon are: (1) Denial of motion for nonsuit and directed verdict; (2) refusal to find as requested by defendant and finding as requested by plaintiff; (3) error in admission of evidence; and (4) error in allowing an amendment to the complaint.

1. Tbe first and second errors may be considered together, since they go to the merits of the case and involve the right of recovery regardless of the error in admission of evidence and in allowing the amendment. It is contended by counsel for appellant that judgment must be reversed unless the defendant can be held in an action for money had and received. It is not very important, under our system of pleading, what we call the cause of action set up in the complaint, since the old forms of action have been abolished by the Code. It is sufficient under the rules of law and our system of pleading that the complaint sets forth a plain, concise statement of facts sufficient to constitute a cause of action under the law: Whether the liability of the defendant springs from a breach of an express contract in failing to pay on demand the amount of money claimed, or through an implied duty to respond to the plaintiff for the amount of money remaining in defendant’s possession which belonged to the plaintiff, is not very material. ' The contract between the parties and all the material facts necessary to constitute the cause of action on the part of the plaintiff are set up in the complaint, and the alleged defense is set up by way of answer. So that all the material facts respecting the controversies between the parties appear in the pleadings and are found by the court after a jury trial had been didy waived.

The main controversy in the case is that the money was not received by the defendant, because the note referred to in the statement was executed to one Knight and not to defendant, and that Knight discounted the note and received and retained the proceeds. Rut the answer to this is that it appears from the evidence that Knight was acting for the defendant; in fact it might be said that Knight was the defendant, because he owned all of the stock, had control and management .of defendant, and acted for it in receiving and holding the money. So his acts were in fact the acts of the defendant.- The contract in question was a contract between plaintiff’s assignors and the defendant, as appears by sufficient evidence. Knight testified that he was the owner of all the capital stock, that four shares not in his name were donated to holders to keep up the organization of the company, that the defendant sawed the logs referred to in the contract, and that it never assigned the contract to Knight; and Knight admitted that the claim was against the defendant. The evidence shows that the money was paid by way of advancement on the contract, and that defendant was to pay plaintiffs assignors in money any excess of such payment which might appear when the lumber was graded and delivered.

Plaintiffs assignors duly performed the conditions of the contract on their pax*t to be performed, hence there resulted an obligation on the part of the defendant to pay the amount of money found due by the court. This amount was to be paid in lumber or money, and the defendant on demand, having failed to pay in lumber, became obligated for the amount found due by the court below.

2. After the evidence was all in the court allowed an amendment to the complaint to make it conform with the proof, and this is complained of as error. We do not think the amendment was necessary, because all the issues in the case and necessary to a full determination of the controversy were raised by the pleadings without the amendment. True, the complaint was very general, but there was no motion to make it more definite and certain, and we are of opinion that all evidence received was admissible under the complaint without amendment. But, even if this were not so, we think no error was committed in allowing the amendment and the defendant could not have been misled thereby.

3. Error is also assigned and argued here because the court admitted evidence of custom. This evidence was offered for the purpose of explaining or rather showing the sense in which the provision in the contract, “Vollmar & Below agree to ship all of the above lumber- by October 15, 1905, or pay for the same on estimate,” was understood by the parties. The evidence was offered for the purpose of showing the general custom of the trade and usage of such provision in contracts of this kind. Perhaps no proof of custom was necessary, but in any event its admission was not prejudicial. The provision was used in the contract and a part of it, and if ambiguous it might be explained by parol evidence.

We find no reversible error in the record. The judgment must therefore be affirmed.

. By the Gourt. — The judgment of the court below is affirmed.