CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF WISCONSIN. ROBBINS VS. LINCOLN. A performed services for the firm of B & C, and had an account against C, in- An instruction given by the court to the jury, in such case, that the plaintiff The answer also averred that "the defendant had no knowledge or information Jan. Term, 1860. Jan. Term, 1860. ROBBINS V. LINCOLN. pose, and therefore had no knowledge, &c., whether he was, or on a final accounting would be, indebted to the plaintiff: Held, that this denial was consistent with a full knowledge that plaintiff had paid out all the moneys alleged in the complaint to have been paid by him, and in strictness of pleading was not such a denial of the paying out of the moneys mentioned in the complaint, as to put the plaintiff upon the proof thereof. It seems that the deposition of a witness taken in this state is not admissible in evidence, if the certificate of the officer before whom it was taken, state as the only reason for taking it, "that the deponent is going out of the state," although the party offering the deposition testifies on the trial that the witness was still absent from the state. A judgment will not be reversed on account of the admission of such a deposition, where it appears that the verdict of the jury, who tried the case, could not properly have been different, if the deposition had been excluded. ERROR to the County Court of Dane County. The complaint of Lincoln, the plaintiff below, alleged that the defendant, Robbins, was indebted to him for money laid out and expended by him, and for work done and performed by him and his wife, for the defendant, at his request, and for a promissory note executed by one Francis Massing, payable to the plaintiff, and by him sold and delivered to the defendant, at his request, the several items of which indebtedness were as follows: [Here follow various items of cash alleged to have been paid out by the plaintiff for the defendant, amounting to $2,204 49, and also the following:] "2 months work of plaintiff's wife, 16 00 The complaint further stated that the sum of $2,825 95 of the said indebtedness had been paid, and that there was due from the defendant to the plaintiff the sum of $480 62 with interest, for which plaintiff demanded judgment. The answer of the defendant denied that the plaintiff had laid out or expended any money for him, except such sums as had been delivered by him to the plaintiff for that purpose, and denied that he was indebted to the plaintiff in any sum therefor. The defendant also denied that he was indebted to the plaintiff for one year's services, performed by him as stated in the complaint, but on the contrary, alleged that during a portion of the time when said services were performed, to wit, from January, 1858, to the 6th of July, 1858, the plaintiff was in the employment of the firm of "Tweed & Robbins," (composed of John P. Tweed and the defendant) and not of the defendant individually; that the plaintiff was never in the employment of the defendant, individually, except for about six months, commencing on the 6th of July, 1858, and during that time was, by agreement, to be paid at the rate of $300 per year; that the defendant was not indebted for the services of the plaintiff's wife, but that the same had been paid for, by her board at the house of the defendant; that the defendant had no knowledge or information sufficient to form a belief, whether the plaintiff had laid out and expended all the sums of money delivered by the defendant to him for that purpose, as aforesaid, and therefore had no knowledge or information sufficient to form a belief, whether he was, upon a final accounting, indebted to the plaintiff in any sum whatever. The plaintiff replied, denying every allegation of the answer tending to constitute a counter claim. On the trial, the plaintiff was sworn as a witness in his own behalf. The defendant, by his counsel, objected to any evidence being introduced under the complaint, except for work and labor, and the court ruled that the testimony should be confined to the several items of account, not relating to cash received from the defendant and laid out for his use. The plaintiff testified substantially as follows: "I commenced working for the defendant, October 22, 1857, at the price of $400 per year. I staid there until March, 1859. I charged for my entire work, $400, and for my wife's extra work, $16. I let defendant have a note of Francis Massing for $676 08. This note was in the account when we settled." Upon cross examination he said: "Mr. Robbins told me that Tweed & Robbins owned and carried on the farm in company; he told me Mr. Tweed owned one-half the farm. A little before the 1st of July, 1858, Mr. Robbins reckoned up all accounts, and about the 6th of July, 1858, he said he had purchased Tweed's interest and assumed all the debts for the Jan. Term, 1860. ROBBINS V. LINCOLN. 1860. ROBBINS V. LINCOLN. Jan. Term, farm, and this among the rest, and promised to pay it. Up to the 6th of July, the books were kept in the name of Tweed & Robbins; after that time, the accounts were kept in Robbins' name; I worked for Tweed & Robbins until the 6th of July. When we settled, there was $963 55, besides the interest and my wife's work, due me. In February, his brother paid me $125, and has paid me in all $525. I told defendant I should charge for my wife's work after the year was up, aud he said he would pay it." On the trial, the plaintiff offered to read in evidence the deposition of one Burwell, taken in the city of Madison, on the 29th of August, 1859. The notice of the taking of this deposition did not state any reason for the taking thereof, and the only reason for taking it, mentioned in the certificate of the justice of the peace before whom it was taken, was "that the deponent, O. W. Burwell, is going out of the state." The certificate states that the attorney for the defendant attended at the taking of the deposition, but it is stated in the caption of the deposition that the defendant's attorney objected to the sufficiency of the notice of the taking of the same. The defendant objected to the reading of the deposition, on the ground that the notice and the certificate of the justice specified no sufficient reason for taking it. The court thereupon asked the witness Lincoln, if the said Burwell was then (at the time of the trial) absent from this state, who replied that said Burwell was so absent; whereupon the objection was overruled by the court, and the deposition read in evidence, the defendant's counsel excepting thereto. The deposition was in substance as follows: "Last May the defendant Robbins said that he should have paid Lincoln the $600, or thereabouts, that was due him, if Lincoln had not sued him, but now he should keep him out of it as long as he could and make it cost him more than the claim. I was at Robbins' while the plaintiff's wife was working in his family. In my opinion her labor was worth two dollars per week; Mr. Robbins told me he should make Mr. Lincoln prove what he had done with the money." This being all the testimony in the case, the judge of the county court charged the jury, among other things, as follows: 1860. ROBBINS "If the jury find that the defendant, after the dissolution Jan. Term, of the firm of Tweed & Robbins, promised the plaintiff to pay him for his work, done while in the employ of said firm, then the plaintiff may recover for the same in this action," to the giving of which instruction the defendant's counsel excepted. The counsel for the defendant requested the court to charge the jury as follows: "That if they found from the evidence that the plaintiff worked upon said farm for the firm of Tweed & Robbins, during the time, or any portion of the time, for which he has charged for his services in the complaint in this action, then he could not recover for his services for such time, in this action, against Robbins alone," which instruction the court refused to give, the defendant's counsel duly excepting to the refusal. The jury having found a verdict for the plaintiff for $510 21, the defendant moved for a new trial, upon the ground that the court erred in all the several rulings upon the trial to which the defendant had excepted, and because the verdict was contrary to law and to evidence, and "because there were other errors apparent in the pleadings and proceedings." Which motion the court overruled and rendered judgment upon the verdict. Smith, Keyes & Gay for plaintiff in error: I The court erred in admitting the deposition of Burwell, because the certificate of the justice did not disclose any sufficient reason for the taking thereof, as required by statute, and the omission could not be aided or supplied by parol testimony. Reading vs. Weston, 7 Conn., 143; Amory vs. Fellowes, 5 Mass., 219; Collins vs. Elliott, 1 Har. & J., 1; Wincoskie T. Co., vs. Ridley, 8th Vt., 405. IL The promise of Robbins to pay for work which had been performed for the firm cannot avail the plaintiff in this action, because the alleged new promise to Lincoln was not supported by any consideration, moving from the latter, and, because the promise was void under the statute of frauds, being a promise to pay the debt of another, and not in writing. 1 Chitty on Pleadings, p. 47; 17 Johns. Rep., 340; Emerick vs. Sanders, 1 Wis. Rep., 77, 97, 101. III The promise is not available to the plaintiff in this LINCOLN. |