Roach v. Town of Menomonie ( 1869 )

Dixow, C. J.

According to the decisions of this court in State ex rel. Dockstader v. Brown et al. (20 Wis. 287), and in Grubb and others v. The Town of Menomonie (21 id. 594), the complaint in this action contains a sufficient statement of all the facts necessary to constitute a valid contract between the plaintiff and the town, without the additional statement found in it that there was a special agreement between the plaintiff and the supervisors of the town with regard to the plaintiff’s enlistment. Aside from the alleged special agreement, and considering that as altogether out of the complaint, a good cause of action is stated upon the contract existing between the plaintiff and the town, by reason of the vote of the electors, at an election regularly held, to pay the two hundred dollars bounty, and the plaintiff’s acceptance of the proposition by his enlistment and mustering into the military service, and being credited upon the quota of the town, within a reasonable time after the vote was taken and before the quota was filled or the sum voted to be raised was exhausted. All these facts are distinctly alleged in the complaint, and moreover that the enlistment, mustering in and credit were made and procured by the plaintiff with direct reference to obtaining the bounty, and that the officers of the town were immediately notified thereof. And the same facts thus alleged in the complaint were fully proved on the trial, and also that the plaintiff had never been paid. Why then should not the verdict and judgment rendered in his favor be permitted to stand % It is said, because immaterial and incompetent evidence was admitted, and improper questions asked, and because the special agreement set up with the supervisors was not made out. These are objections of no moment as against a verdict and judgment so manifestly right and just on the pleadings and proofs. The immaterial and incompetent evidence and improper questions complained of, all related to evidence offered or introduced for the purpose of establishing the special agreement alleged to have been made with the supervisors. It is a well-settled general proposition, that a verdict will not be set aside or a judgment reversed upon grounds like these, even where the improper evidence admitted or questions allowed pertained to facts materially in issue between the parties, provided it can at the same time be clearly seen that the party complaining was not prejudiced thereby, and that the verdict and judgment must have been the same if the improper evidence had not been admitted, nor the questions allowed. If the proposition be correct where the evidence or questions were improperly allowed to show facts materially put in issue, then it must with still stronger reason be correct where the issue joined was .upon facts wholly immaterial. Such was the issue here upon the alleged special agreement between the plaintiff and the supervisors of the town. It was wholly immaterial to the plaintiff’s right of action whether, any agreement of the kind was made or not. He showed a valid cause of action and clear right to recover without proving such agreement, and his complaint would have been good without alleging it. The most that can be said upon this point is, that, having alleged it, he was bound to prove it, or there was a variance. But it was a variance upon a strictly immaterial issue, and so could do no injury. Besides, if it had been a variance of a different kind, it would still have been immaterial under the statute which declares that no variance between the allegations in a pleading and the proof shall be deemed material, unless it shall actually mislead the adverse party to his prejudice in maintaining his action or defense upon its merits. R. S. ch. 125, § 33. It is not pretended that such was, or could have been, the case with respect to the town here; and so, upon either ground, the objection is untenable, and must be overruled.

It follows from these views, that, as the record discloses no errors for which the judgment ought to be reversed, it'must be affirmed.

By the Court. — Judgment affirmed.