Longwell v. Mierow , 130 Wis. 208 ( 1906 )

Marshall, J.

The claim as presented to the county court and to the circuit court did not contain any statement of the agreement out of which it originated, yet such claim included enough to suggest that it was based on an agreement of some sort and that the right thereunder was not barred by the statute of limitations. In view of this and the liberal rules in respect to such matters in county courts and the treatment of the filed claim as a complaint on appeal to the circuit c'ourt, we are constrained to hold that 'the failure to state therein facts showing expressly a cause of action which accrued within six years prior to the death of Henry Mierow was a matter of indefiniteness rather than a fatal defect in the cause of action. It is quite likely that the trial court took that view in allowing the indefiniteness to be removed by adding to the writing a statement that the work was done under an agreement that it should be paid for upon the death of Henry Mierow. In any event, it seems that it was within the court’s discretion to allow the amendment, and, it having been allowed, the fact that it was not formally reduced to writing and filed, inasmuch as the cause proceeded to the end on the theory that it had been made, is immaterial. Trial courts have a very broad discretion in such matters, as this court has often said. The limits, generally speaking, are that the form of the action must not be changed from one in equity to one at law, nor from one on contract to one sounding in tort, nor contain an independent cause of action accruing pending the suit, and the amendment must be in furtherance of justice and allowed in such manner as not, in a legal sense, to prejudice the rights of the adverse party. Gates v. Paul, 117 Wis. 170, 94 N. W. 55. Subject to such limitations the power of amendment is fenced about only by the broad limits of judicial discretion, so long as the cause is under the control of the court invoked in respect to the subject. Such is the broad liberal spirit of the Code, designed in all its parts to furnish a way to prevent mistakes and technicalities from efficiently interfering with the course of justice.

The test to be applied to the evidence in solving the controversy as to whether there was an express agreement to pay for the work as found by the jury is this: Is there room in the evidence for reasonable minds to reasonably differ as to whether there was such an agreement or not, reasonable doubts in respect to the matter to be solved in favor of the decision of the trial judge? That is elementary. We have occasion to state the rule and apply it so frequently that it would be a work of supererogation to do more than to refer thereto.

This class of cases is always characterized by much dif-Realty as regards certainty in tire evidence. It having been established as the settled law that in such a case-an express agreement to pay for the labor is essential to a recovery, bat that it is competent to establish the agreement by circumstantial evidence from which the agreement is reasonably inferable (Estate of Kessler, 87 Wis. 660, 59 N. W. 129; Leitgabel v. Belt, 108 Wis. 107, 83 N. W. 1111), and that declarations of the deceased together with suggestive circumstances may properly be regarded as controlling (Leitgabel v. Belt, supra), it is easy to see how wide the door is open for the introduction of evidence of a quite unsatisfactory character, as viewed here, but of sufficient probative force that this court in face of a decision of the trial court, who heard it, cannot condemn it as not being worthy of any credence at all. Such claims as this are commonly established by the circumstance that the work was actually done and proof by various persons, having little or no interest in or occasion to charge their minds with the matter, of declarations of the deceased made to them on the subject. Tyler v. Burrington, 39 Wis. 376, 382; Estate of Kessler, supra. Generally such declarations are made in casual conversation, and when there are many instances testified to by many persons the statements of the different witnesses commonly vary quite materially, one class testifying in general to declarations indicating the existence of an express contract and others to declarations indicating the contrary, and the two classes varying more or less between themselves, making, in the ultimate, a conflict which leaves the truth of the matter, as the case is exhibited in a printed record of the trial, quite close to the border line of mere conjecture, and yet facing the decision of the trial court and according thereto the dignity it deserves the duty of the appellate tribunal be quite clear to affirm such decision.

In this case, as claimed on behalf of appellant, there is considerable evidence indicating that Henry C. Mierow during the period covered by his claim labored on his father’s farm, working the same on shares. With that concession it is needless to refer to the evidence in detail, if there be other evidence conflicting therewith, justifying sending the matter to the jury. It seems that there was considerable evidence to the effect that the labor was performed with an understanding that compensation would be rendered therefor by a provision devising and bequeathing property, and evidence suggesting with more or less force, according to the standpoint from which it is viewed, that the labor was performed under .an express agreement that it should be paid for .according to its reasonable value at the death of Henry Mierow. There was' testimony by John McOance and others that Henry Mierow was the “boss” of the farm, as the witnesses put it, and his son Henry O. a mere servant; that he worked like any hired man and that the father directed all operations and employed and paid for all outside help. There was evidence by Mrs. Puls and others to the effect that Henry Mierow .said to or in the presence of each that Henry 0. would be, or was to be, paid for his labor at the death of the former; that such was the agreement, as one witness put it. How, in view of this evidence and the evidence, contradicted it is true by other evidence, that the son worked for his father seemingly like any hired man, and the circumstance, as to which there is no controversy, that, although he left the farm in 1895, he made- no claim for compensation till after the father died, thereby allowing his claim, if he had one, to be extinguished by the statute of limitations, unless the nature of it was as found, we are unable to say that the trial court was manifestly wrong in submitting the cause to the jury or in confirming the verdict.

As no question is raised respecting the reasonable value of the work, as found by the jury, the foregoing disposes of nil matters material to the appeal in favor of the respondent.

By the Court. — 'The judgment is affirmed.