Johannesson v. Borschenius , 35 Wis. 131 ( 1874 )

Dixon, C. J.

The judge instructed the jury that the only cause of action for the conversion of property, proved or which the evidence tended to prove, was for the taking and detention of the receipt. He charged that the school land certificates, mentioned in the second count of the complaint, were, at the time of the alleged conversion of them by the defendant, the property of the defendant by legal title, and consequently that whatever right the plaintiff might have had in equity to compel a transfer of them, if any, yet the defendant could not be found to have converted them as against the plaintiff. We are of opinion that the judge was correct in these propositions, and hence that the only damages recoverable in this action are those growing out of the alleged conversion of the receipt, to wit, for the trouble, loss and expense to which the plaintiff, was subjected in consequence of its having been taken and detained, and in order to regain possession of it, together with such vindictive damages, if any, as the jury shall think the defendant ought to pay, in case they find his motives and conduct on the occasion of the alleged conversion to have been fraudulent and oppressive, malicious or insulting. The case stood, therefore, upon the final summing up and charge of the court, as if there had heen no second count in the complaint, but only a count for the conversion of the receipt.

In this view of the case, which -we have already said we regard as correct, it is obvious that there was considerable testimony introduced in behalf of the plaintiff upon the trial, and to which the defendant objected, which ought to have been rejected. Such was the character of all the evidence the plaintiff was permitted to give of the expenses he incurred and the loss and trouble to which he was put about the certificates, and for the purpose of setting aside the patent. This was foreign to the only good cause of action stated, and of which any proof was given, and was incompetent and improper testimony. It was evidence of damages which could not be recovered in this action, but which sounded in contract and not in tort, and hence were recoverable, if at all, only in an action of assumpsit, or of that nature, for a breach of the implied promise of the defendant not to take the certificates or the patent or the title of the lands to himself or to another, but to cause them to be transferred to the plaintiff. The essential difference between actions ex delicto and ex contractu, and in the nature and effect of the judgment, is well known, and positively forbids the recovery of damages upon contract in an action of tort, if any proper objection be taken. Supervisors v. Decker, 30 Wis., 631; Anderson v. Case, 28 id., 505.

The effect of admitting improper evidence is well understood. It is fatal to the verdict and judgment, unless the jury were positively directed to disregard it; and even then the error will not be cured if it appears that their verdict was in any way affected by it. State Bank v. Dutton, 11 Wis., 371; Johnson v. Hamburger, 13 id., 175; Remington v. Bailey, id., 332; Castleman v. Griffin, id., 535; Conklin v. Parsons, 1 Chand., 240 (2 Pinney, 264); Ræbke v. Andrews, 26 Wis., 351, 354. At the request of the defendant, the court instructed the jury that no damages could be allowed or assessed to the plaintiff in any manner arising from the withholding cf the school land certificates, nor for his attorneys’ fees charged or paid for the recovery of them, and none for his own time spent in the effort to obtain them from the defendant. It can hardly be said that this was equivalent to a positive direction.to the jury, in their consideration of the case, to disregard all the evidence which had been given upon that subject; but if it was, still the evidence respecting that trouble and expense in and about the setting aside of the patent remained untouched. The jury were left to consider that evidence, which was improperly received, and no one knows what effect it may have had upon their verdict.

By the Court.— Judgment reversed, and a new trial awarded.