Duffy v. Hickey , 63 Wis. 312 ( 1885 )

Cassoday, J.

Against the objection and exception on the part of the defendant, the plaintiff was allowed to testify upon the trial, in effect, that at the close of the second year he met the defendant and his son for settlement; that the plaintiff gave the defendant’s son some paper; that each party gave to the son the several items claimed against the other, and that the son took them down on the paper and struck the balance; and that it was found on sucli settlement that the balance due the plaintiff from the defendant was $175.48; and that tbe plaintiff then banded the son a book, in which, the son, in the presence of the defendant, made this entry: " P. C. Duffy’s account with Andrew Hickey. Due P. C. Duffy, $175.48.” The action was not based upon the alleged settlement. No reference is made to any settlement in the complaint or answer. It is claimed, however, that the evidence was admissible as an admission on the part of the defendant. This is undoubtedly true; but, as a mere admission, it cannot be regarded as conclusive-. Under the pleadings, all the items claimed on both sides were open for investigation. This being so, it is claimed that the following portion of the charge to the jury in relation to the meeting was misleading: '“It is not denied by the defendant that the meeting of the parties took place, or that his son made the memorandum in the book as stated by this plaintiff; but the defendant testifies that the statement made was only of the items of the plaintiff’s account against the defendant, and did not include the items or any of them of defendant’s account against the plaintiff; and the defendant also denies promising to pay plaintiff this sum, which promise is testified to by plaintiff.” Then follows this charge: “If you believe the plaintiff stated truly, then he ought to recover the $175.48, at least, and your verdict should be for the plaintiff for at least that sum.'”

Under this charge, if the jury believed that “the plaintiff stated truly,” then they were bound to find “for the plaintiff for at least that sum,” even though, as a matter of fact, they were convinced from the evidence that the true balance was much less, or even the other way. In other words, the jury were told, in effect, that the alleged admission, if made, was conclusive upon the defendant, regardless of the state of the accounts, or the true balance at the time. Tbe real issue was as to the true balance between the parties at the end of the third year. The court presented to the jury, as the issue, whether the defendant made the alleged admission at the end of the second year, and then told them, in effect, that if he did, it was conclusive upon him. Besides, the use of the words “ at least,” in the portion of the charge quoted, was a pretty strong intimation that although the alleged settlement was conclusive upon the defendant, yet it was not binding upon the plaintiff. This portion of the charge, under the pleadings, was clearly a misdirection.

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