McNally v. McAndrew

NbwmaN, J.

The appellant claims that there was an entire failure of proof on the part of the defendant Riley. This can be true only in a case where the proofs fail to establish the issue in its general scope and meaning. The answer of defendant Riley alleged that he was the owner of the notes by purchase from his father. The proofs showed that he -was the owner by gift from his father. The substance of the issue tendered by the answer was the ownership of the notes. The means whereby the defendant became the .owner was subordinate and incidental. It was not the substance of the issue. Proof of ownership, by whatever lawful means, established the issue for the defendant, in its entire scope and meaning. It has been held by this court, in a case where the complaint was for goods sold and the proof was of a conversion, that the variance was immaterial, because the plaintiff had the right to waive the tort and sue on the contract. Walker v. Duncan, 68 Wis. 624. A variance between the allegation and the proofs is not deemed material unless it be made to appear that the adverse party has been actually misled to his prejudice. R. S. sec. 2669; Harper v. Milwaukee, 30 Wis. 365-373; Ryan, C. J., in Delaplaine v. Turnley, 44 Wis. 43; Engel v. Hardt, 56 Wis. 456. The plaintiff had taken the defendant’s deposition under sec. 4096, R. S., and knew the true nature of his claim, and must have come expecting to meet the precise claim which the proofs tended to establish. There -was no failure of proof ■or material variance.

The undisputed evidence shows that, some years before his death, Patrick Riley indorsed a written assignment of the mortgage, and the notes secured by it, upon the mortgage, and delivered all the papers, as a gift, to his son IF. H. Riley. Patrick Riley afterwards told the defendant McAndrew that he had given the notes and mortgage to W. H. Riley. It was all the time understood that the father was to have the interest on the notes so long as he lived. The notes, were afterwards given to him, that he might receive the interest, and were found among his papers after his death. These facts are not necessarily inconsistent with the hypothesis that the delivery of the papers to W. R. Riley was intended to take effect, in prmenti, as a gift. Mor does the fact that he afterwards obtained possession of the notes, for the purpose named, as matter of law establish a revocation or surrender of the gift. 8 Am. & Eng. Ency. of Law, 1317. The evidence is sufficient to support the conclusion of the trial court in that behalf.

The evidence which tended to prove the consummation of the gift was the testimony of T. E. Riley, who was a brother of W. R. Riley, and who was present at and witnessed the transaction, and also the testimony of MeAndrew that Patrick Eiley told him that he had given the notes and mortgage to his son W. IÍ. Riley. To rebut the presumption of a consideration raised by the,written instrument of assignment, the plaintiff’s attorney took the witness stand, and testified that the defendant Riley had, in his deposition taken under sec. 4096, E. S., testified that no consideration, had been paid. The court thereupon held that the whole deposition had become admissible by the introduction of a part of it in evidence by the plaintiff, and it was all received in evidence. This is claimed to be error. But In re Hess’ Estate, 57 Minn. 282, and Jones, Ev. § 792, and cases cited in the notes, seem to support this ruling. But, if the ruling was wrong, it is not reversible error. The issue was tried by the court. It is no sufficient ground for reversal that incompetent testimony was received, where there is sufficient competent testimony to support the judgment. It will be presumed, in favor of the judgment, that only the competent testimony had weight with the court. Wheeler & W. Mfg. Co. v. Laus, 62 Wis. 635; Hooker v. Brandon, 75 Wis. 8-16; Frisk v. Reigelman, 75 Wis. 499; Farr v. Semple, 81 Wis. 230; Rozek v. Redzinski, 87 Wis. 525.

No reversible error is found.

By the Court.— The judgment of the circuit court is affirmed.