Lathrop v. Humble

Dodge, J.

Tbe evidence offered and excluded at least tended to prove an executed transfer of tbe replevied borses,, made on tbe day that the deed of tbe farm was executed. No reason is apparent why plaintiff might not prove that fact by parol evidence. The_statute of frauds offered no obstacle, for a delivery of property ánd payment of consideration were offered to be proved. Tbe fact that, as a part of tbe same transaction, there was executed a deed which recited that, for tbe whole consideration paid, tbe defendant conveyed-other property, presented no obstacle. Such deed,, in its very nature, was not an attempted expression of the-whole contract; it was but the execution of the whole or a part of the defendant’s side thereof. Cuddy v. Foreman, 107 Wis. 519 , 83 N. W. 1103 ; Brader v. Brader, 110 Wis. 423, 432 , 85 N. W. 681 . Indeed, it is in no wise inconsistent with a deed which recites that, for a money consideration named, certain property is thereby conveyed, that for the-same consideration other property is also conveyed. A gross sum of $5,000 may buy several tracts of land or articles of’ personal property, and separate conveyances of every parcel be made, each reciting such sum as its consideration, and present no inconsistency, for the gross payment would be the-true consideration for each conveyance. Eor another reason the fact that a deed was made reciting as its consideration-the entire payment made would be no obstacle to prove that at the same time defendant made an executed transfer of other property, for such transfer would be valid even if there-were no consideration for it. Plaintiff’s claim that title to these horses was transferred to him on January 15th by the defendant would not be invalidated by the fact that he paid nothing for such transfer. It was entirely competent for the defendant to make over such horses to him as a free gift or in consideration of some claim made by plaintiff that he was equitably entitled thereto by virtue of the prior transactions,. *334 whether such claim had any validity ox not. The evidence offered as to the transactions on the previous day at least tended to prove a claim on plaintiff’s part that defendant had acted unfairly with him in omitting from the written execu-tory agreement this property, which both parties had understood was to be included therein. Whether he could have proved such facts to effectively modify or defeat the written agreement made on the 14th was not material. The mere claim that such writing was not in accordance with his understanding, of itself constituted a reason and a sufficient consideration for defendant to make transfer of these articles of property not included therein. Conceding, therefore, that plaintiff could not have been permitted to show by parol that the executory writing of January 14th did not correctly express the agreement then made by the parties (John O’Brien L. Co. v. Wilkinson, 117 Wis. 468 , 94 N. W. 337 ) for the purpose of affecting the validity of that agreement, he could .show the situation and the claims of the respective parties for the purpose of establishing the meeting of their minds on January 15th as to the transfer of the property in controversy. The conclusion is irresistible that the court erred in excluding the testimony offered by plaintiff to prove the transfer to him of these horses. Whether there may have been some portions of that testimony objectionable as irrelevant or immaterial on other grounds, need not, for the purposes of this appeal, be considered. Generically, the testimony was admissible, and its exclusion was error.

But here the defendant makes contention that, because the bill of exceptions is not certified to contain all the evidence, we cannot review the judgment. This is an entirely mistaken view. The absence of such certificate goes no further than to preclude us from examining any errors which are 'predicated upon disregard of the evidence, such as the directing, or refusing to direct, a verdict, and the like. When the bill of exceptions discloses palpable and distinct error, the *335 judgment must be reversed unless the record makes reasonably certain the absence of any prejudice from that error. Enough appears in the bill of exceptions in this case to show that the rejection of the evidence in question was directly material to the conclusion reached by the court, and the absence of assurance that we have all the evidence before us makes it impossible to say from the bill of exceptions that the error committed was nonprejudicial. Review of specific errors, although the bill of exceptions did not contain all the evidence, has always been customary. Hamlin v. Spaulding, 27 Wis. 360 ; Roberts v. McGrath, 38 Wis. 52 ; Humphrey v. Taylor, 45 Wis. 251 ; Nass v. Schulz, 105 Wis. 146 , 81 N. W. 133 ; McAllister v. State, 112 Wis. 496 , 88 N. W. 212 .

Defendant now interposes another obstacle to plaintiff’s recovery, in that his amended complaint contains no prayer for judgment. The action having been commenced in justices’ court upon the statutory affidavit in replevin, when it reached circuit court a formal complaint was filed, setting forth the necessary facts, but containing no prayer for relief. Defendant did not demur to the complaint, but answered. At the trial, however, he interposed an objection to any evidence because of the insufficiency of the complaint. That motion was overruled. Doubtless, the failure of complaint to declare the relief demanded renders it defective1. Sec. 2646, Stats. 1898. Whether, however, it can be said to fail to state facts necessary to constitute the cause of action, so as to be obnoxious to a general demurrer, or whether the defect should be reached by a motion to strike out or a motion to make specific, may perhaps be doubted. Indeed, there seem to be decided cases indicating that any of these methods may be pursued. The defect, however, is not one of which the defendant can avail himself at this time. The trial court overruled his objection in the nature of a demurrer ore terms, and received evidence. If the objections had been sustained, the trial court would of course have given plaintiff an oppor *336 tunity to amend. It would be distinctly perversive of justice to bold that sucb defect should now be made reason for affirming a judgment against tbe plaintiff wben be lias.bad no sucb opportunity. If it were conceded that tbe court below erred in overruling this objection, it would not be an error which would justify tbe affirmance of bis judgment notwithstanding tbe error committed against plaintiff. It would at most warrant a new trial, with opportunity to amend.

By the Gourt. — Judgment reversed, and cause remanded for new trial. •