Bell v. Thomas , 1884 Wisc. LEXIS 211 ( 1884 )

OetoN, J.

The complaint alleges a written contract between the parties by which the plaintiff was to furnish the defendant minutes of certain lands of the state and of the general government subject to purchase, and in consideration thereof the defendant was to pay him at the rate of fifty cents per ame for such part of said minutes as were of lands that the defendant “ could handle and dispose of.” And it further alleges that thereafter-the defendant sold said minutes of certain tracts of government lands for a valuable consideration to one McLaughlin, and that he (McLaughlin) entered the same to the amount of 120 acres. The answer admitted substantially the contract as alleged. The above language, “could handle and dispose of,” is in the written agreement introduced in evidence by the plaintiff.

The plaintiff sustained his complaint by evidence. The defendant insisted upon the trial that the proper construction of the contract is that he was not to be liable to pay the plaintiff for any minutes which were of no use to him, and that he had procured minutes of the same land before that time from others, and made use of them' only, and introduced evidence to sustain such defense. The circuit court took the same view of the contract, and granted a nonsuit at the end of the trial. This was clearly erroneous.

The minutes were the property of the plaintiff, and the defendant bought them, as such property. They had been made by the labor and skill of the plaintiff, and they had value in market. He might have sold them to others had he not sold them to the defendant. The fact that the defendant had minutes of the same lands, made by others, did not by any means render the plaintiff’s minutes valueless. They might have been fuller or more reliable. At all events, by his obtaining them he prevented the plaintiff from disposing of them to others. But whatever their value, or the reasons of the defendant for purchasing them, he bought them, and that is enough. The condition of payment was fulfilled when the defendant purchased, or caused to be purchased, the lands described in them. The defendant sold them to the person who entered the lands they described. Any other construction would be trifling with the plaintiff’s rights of property and render the contract futile. To so construe it that the defendant could lay the minutes aside or destroy them or not use them, and then enter the same lands on minutes made by others or on his own inspection, and by so doing avoid liability to -pay for them, would deprive the plaintiff of his property without any compensation whatever. He had other minutes, and, if he did not want these, why did he buy them? By so doing he might have prevented their use by others. The contract is plain enough with a reasonable construction.

The key-note of the error of the circuit court is found in one sentence of the reasons given for the nonsuit: “ I think it absolutely indispensable that you should set out in your complaint, and prove, not that this land was entered, but that these minutes were used, by the defendant.”

Before entering upon the trial, the plaintiff’s counsel asked leave to amend the complaint by changing the number of the section of some of the lands entered from 11 to 14, to correct a mere clerical error. The defendant made affidavit of surprise, and asked a continuance of the case. The court decided to grant the continuance, and to save the trial at that time such motion to amend was withdrawn. After the evidence was all in, and it had been shown that said lands were in section 14, and not in section 11, the plaintiff’s attorney again asked leave to so amend the complaint, and it was refused. Such refusal was not an abuse of discretion, but a violation of the statute. Sec. 2830, R. S. The complaint should be so amended.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.