Roszina v. Nemeth , 251 Wis. 62 ( 1947 )

The defendant moves for a rehearing. The principal ground is that the court erred in instructing the jury that the burden was on the plaintiff to prove the contract claimed to a reasonable certainty by a preponderance of the evidence. It is strenuously urged that this was error of such import that a new trial of the case on all issues must be granted.

Counsel for defendant contend that the instant case is definitely ruled in their favor by Wells v. Perkins, 43 Wis. 160,163, 164, a case first called to our attention in their brief on the pending motion.

We consider that this contention must be sustained. The parties in that case were situated substantially as are the instant parties. The complaint alleged that the defendant agreed to pay the plaintiff for services rendered on defendant's farm while he was living with the defendant, his stepfather, as a member of the family of defendant and plaintiff's mother. The defendant denied making any agreement. The court instructed the jury that "To entitle the plaintiff to recover, he must show that he made an express contract with the defendant to pay him . . . what they [the services] should be reasonably worth" and that "the burden of proof is on the plaintiff," and that he must "prove the contract or agreement, . . . by a preponderance of the testimony." This court held that the instruction was insufficient for not stating in connection therewith that the plaintiff "was bound to `establish [the contract] by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive.'" A jury had returned a verdict for the plaintiff and the court had entered judgment upon it. The judgment was reversed and a new trial ordered.

The motion for rehearing should be granted but we perceive no occasion for reargument or further briefs. By the Court. — The motion for rehearing is granted. The mandate first entered is vacated. The judgment is reversed, and the cause is remanded with direction to order a new trial of all the issues. The appellant will recover costs of the appeal and $25 costs on the motion for rehearing.