Heath v. Heath , 31 Wis. 223 ( 1872 )

Cole, J.

In this case the plaintiff insists that the matters set up in the answer as a defense or counterclaim were obnoxious to two objections: first, that an investigation of them exceeded the amount over which the justice had jurisdiction; and second, that the statute of limitations had run against those claims.

We cannot see that any question of jurisdiction arises upon this record. It is true, an investigation of all the accounts and demands set up in the answer would exceed the jurisdiction of the justice. But what is there to show that the justice attempted to investigate them? It seems there was a judgment for the plaintiff in the justice’s court for $113.02, which would necessarily involve the examination of claims amounting to $226, or thereabouts. When the cause was removed to tbe circuit court, tbe parties might increase tbe ad damnum claimed. This is frequently done for tbe purpose of extending tbe scope of tbe judicial inquiry. And this case stands bere in precisely tbe same position it would bad tbe defendant obtained leave of tbe circuit court to file an answer containing tbe matters set up in tbe one before us. It seems to us that this is all that need be said upon that point.

Then, as to tbe defense of tbe statute of limitations. Tbe plaintiff might doubtless bave taken advantage of tbe statute upon tbe trial, by objecting to tbe introduction of evidence to prove a demand upon which it bad run. But tbe record fails to show that this was done. True, tbe plaintiff objected to the evidence offered to prove tbe parol contract alleged to have been made in 1861, for tbe support of Mrs. Heath, but not on tbe ground that tbe statute of limitations bad run against claims growing out of it. Tbe objection is a general one, without any reference whatever to tbe statute of limitations. We do not suppose, therefore, that there is any question arising under tbe statute of limitations before us. For certainly tbe plaintiff was bound to object in this case, which arose in a justice’s court, to tbe introduction of evidence on tbe part of the defendant to prove a claim against which tbe statute had run, and place bis objection upon that distinct ground, in order to bave tbe benefit of that defense. And this he did not do.

The objection taken, however, was- sufficient to raise the question of the competency of that evidence. And upon that point it seems to us perfectly clear, that, if a verbal agreement of the kind was made, it might be proven by any one who bad knowledge of it, and could testify as to the terms and conditions of the contract. These parties are brothers, and tbe defendant offered evidence tending to prove that a verbal contract was entered into between them in 1861, by which they agreed to support their mother during her natural life — each one contributing equally thereto — in consideration of tbe homestead, which she bad conveyed to them. It is suggested that such a contract, would be void, because, by its terms, it was not to be performed within a year from the making thereof. But this a mistake. It is apparent that this contract might have been entirely performed within a year consistently with the understanding of the parties, because Mrs. Heath might have died within that time. “When the promise is to continue to do something until the contingency occur, as for instance to pay during the promissee’s life; to pay during the life of another ; to board the promissee during Ms life; to pay the expenses of a child so long as it should be chargeable to the town; to educate a child; to support a child, who is eleven years old, till she is eighteen; to pay during coverture; in all these cases the promise is not affected by the statute, because the party whose life is involved may die within the year.” Browne on Frauds, (2d ed.), chap. 13, § 276. Of course all the evidence relating to this alleged verbal contract made in 1861, tended to prove an agreement antecedent to and independent of the written contract upon which .the plaintiff sued. It referred to entirely different transactions. There was no legal objection, therefore, that we can see, to proving this parol contract by any competent testimony. And this disposes of the objection taken to the admission of this evidence.

The circuit court seems to -have submitted the case very fairly to the jury in its charge. The jury has passed upon the evidence, and there is no ground for saying that the verdict is unsupported by the testimony given on the trial. The plaintiff asked no instructions, but did take a general exception to the charge given. But this exception raises no question of law upon the charge, as has frequently been decided by this court. 11 Wis., 168; 15 id., 257; 16 id., 225; 17 id., 665; 21 id., 427; 23 id., 126; 24 id., 139.

It follows from these views that the judgment of the circuit court must be affirmed.

By ihe Court — Judgment affirmed.