Taylor and others vs. Lucas.

ception to "the order of the court denying the plaintiff's ap plication for change of venue." This is an exception of record to an order not of record, apparently because the application indicated had not been made. Such exception is a mere nullity, because there is nothing of record to which it can apply. It is not unlike a written exception of record to the admission of testimony on trial, which would be a nullity. Exceptions to things appearing in the record, must appear of record. Exceptions to things appearing by bill of exceptions only, must appear in the bill of exceptions. And the one mode of exception cannot be a substitute for the other.

It is not necessary to consider the question whether the affidavit was sufficient to support a motion to change the venue, because no such motion appears to have been made, and therefore no order denying it. Upon this appeal, we can only review the judgment itself or interlocutory orders involving the merits and affecting the judgment. There is no such or der to review.

To entitle a party to change of the venue, it is not enough to make an affidavit and read it to the court. An application must be made for the change, upon notice to the other side. Baldwin v. Marygold, 2 Wis., 419; Rines v. Boyd, 7 id., 155; Foster v. Bacon, 9 id., 345; Runals v. Brown, 11 id., 185; Bank v. Tallman, 15 id., 92; Risto v. Harris, 18 id., 400; Dodge v. Barden, 33 id., 246; Moe v. Moe, 39 id., 308; Seehawer v. Milwaukee, id., 409, and many other cases in this court. And a sufficient affidavit, filed and read in open court by the attorney of the party, without proper notice and motion, has no effect to arrest the jurisdiction of the court. The court cannot properly act on such an affidavit in the cause, until it is moved to do so. The affidavit may be made, read and filed, with a view to a future application which may never be made. We do not suppose that it was so intended here; but such a presentation of such an affidavit as appears in this

Wells vs. Perkins.

record, might be a mere impertinence, warranting a proceeding for contempt.

By the Court.-The judgment of the court below is affirmed.

WELLS VS. PERKINS.

INSTRUCTIONS TO JURY. (1) Action by son living with stepfather for labor and services rendered to him; error to omit certain instructions.

EXCEPTIONS. (2) What exceptions will bring up instructions.

1. In an action against plaintiff's stepfather, for labor and services performed by plaintiff after his majority, under an alleged agreement by defendant to pay what they were reasonably worth, one defense was, that during the time of such services plaintiff lived in defendant's family as a member of it, and performed the service in consideration of a home, clothing, etc. The court, after instructing the jury that plaintiff could not recover without showing an express contract of the kind alleged, further charged that if they found, from the preponderance of testimony, that defendant, on or about a day named, agreed with plaintiff to pay him for services afterwards to be rendered, and that plaintiff, in pursuance of such agreement, rendered such services, then he was entitled to recover; and that the burden of proof was on plaintiff to show both the contract and the value of his services by a preponderance of proof. Held, that the charge was erroneous in failing to point out the distinction between circumstances from which a contract may be implied, and circumstantial evidence of an express contract, and in failing to inform the jury that an express contract of the kind alleged “must be established by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive." Tyler v. Burrington, 39 Wis., 376.

[LYON, J., dissents on the ground that the record shows the verdict to rest upon the direct and positive testimony of several witnesses to an express contract, which the jury believed in preference to the defendant's testimony, and that the result could not have been affected by giving the correct rule of evidence.]

2. After verdict, defendant moved, on the judge's minutes, for a new trial, on the ground that the court erred in that part of its charge "wherein it defined the burden of proof and the amount of proof necessary" to a recovery; and he excepted to a denial of his motion. Held, that this was sufficient to bring up that part of the charge for review.

Wells vs. Perkins.

APPEAL from the Circuit Court for Kenosha County. The nature of the action and the substance of the pleadings are stated in the opinion of Mr. Justice COLE. Among other things, the plaintiff testified as follows: "Defendant is my stepfather; he married my mother about 1865. I worked at home and lived in the family until I was twenty-one years old, which was July 1, 1872. About July 2, 1872, I thought of going out to work, and I told the defendant that I was intending to go out on the prairie to work. He said: 'I want you to stay, and I will pay you more than any one else; I can rely on you to attend to my business.' I stayed and worked for him until the 1st of January, 1877." Several witnesses for the plaintiff testified that they were present and heard the conversation above alluded to, and they stated the conversation in substantially the same manner as the plaintiff. The defendant, in his testimony, denied having had such a conversation, and denied having made any contract whatever with the plaintiff.

The defendant had furnished the plaintiff clothing, and given him small sums for spending money, and had treated him in those respects like other members of the family. No account had been kept between the parties, of the labor done. or money spent. The plaintiff did not ask pay for his work. until about November or December, 1876. As to the value of the services, the testimony was voluminous and conflicting.. The instructions given are sufficiently stated in the opinion of Mr. Justice COLE.

Verdict for the plaintiff for $950. A new trial was denied;. and from a judgment upon the verdict, defendant appealed.

Brief for the appellant by Fish & Lee, and oral argument by Mr. Fish. They argued that the court erred in its charge, in defining the character and amount of evidence necessary to entitle the plaintiff to recover, and also erred in refusing a new trial. Fisher v. Fisher, 5 Wis., 472; Mountain v. Fisher, 22 id., 93; Kaye v. Crawford, id., 320; Hall v. Finch, 29

Wells vs. Perkins.

id., 278; Pellage v. Pellage, 32 id., 136; Tyler v. Burrington, 39 id., 376.

Brief for the respondent by J. V. & C. Quarles, and oral argument by J. V. Quarles:

1. There is no exception to the general charge, so that the question whether the judge properly stated therein the law as to the quantity of proof, is not before this court. 2. The rule laid down in the cases in this state as to this class of contracts, relates rather to the nature and character of the proof than to its quantity. The cases hold that, even in this class of cases, inferential or circumstantial evidence is not to be excluded; but must be so strong as to be tantamount to direct proof. Pellage v. Pellage, 32 Wis., 136; Hall v. Finch, 29 id., 287; 1 Greenl. Ev., § 13. 3. It is too obvious for argument, that the evidence in this case was sufficient to sustain the verdict.

[Counsel on both sides argued at length other questions not considered by this court.]

COLE, J. This is an action by a stepson to recover for labor done and services performed, after his majority, for the defendant, under an agreement to be paid what such services were reasonably worth. One ground of defense set up in the answer was, that during the time these services were rendered, the plaintiff lived in and was a member of the family of the defendant, and performed the services in consideration of a home, clothing, board, medical attendance, and spending money, furnished him by the defendant, and denying in effect that the services were rendered under an agreement to pay for them. The plaintiff gave evidence tending to prove the contract as stated in the complaint, but this evidence was contradicted on the part of the defendant. At the request of the defendant, the court gave the following instructions as to what it was necessary for the plaintiff to establish in order to re- . cover in the action:

Wells vs. Perkins.

First. "If you find that the plaintiff, as a stepson of the defendant, lived in his family from the year 1864 to the year 1877, receiving his board and clothing as any other member of defendant's family, and at no time was there any express contract between the parties that the defendant should pay and the plaintiff receive for his services what the same were reasonably worth, then the plaintiff cannot recover."

Second. "To entitle the plaintiff to recover, he must show that he made an express contract with the defendant to pay him for his services what they should be reasonably worth."

In the general charge, the court lays down the rule as to the quantity or degree of proof essential to establish the contract, as follows:

"If you find from a preponderance of the testimony, that the defendant, on or about the 2d day of July, 1872, did agree to and with the plaintiff to pay him, the plaintiff, for work, labor and services then afterwards to be done and rendered by the plaintiff for the defendant, and further find that the plaintiff, in pursuance of such agreement, did perform and render such labor and services, the plaintiff is entitled to recover in this action so much as such labor and services were reasonably worth; and the value of such services you will determine from the evidence. The burden of proof is on the plaintiff, and he must prove the contract or agreement, and also the value of the services rendered, by a preponderance of the testimony."

It seems to us this charge as to the rule of evidence by which the contract must be established, was calculated to mislead the jury to the prejudice of the defendant, and was not in strict accord with the rule as laid down in the recent case of Tyler v. Burrington, 39 Wis., 376. It is true, in civil cases it is the duty of the jury to weigh the evidence carefully, and to find in favor of the party in whose favor the evidence preponderates. In the above charge the court told the jury that if they found from a preponderance of the testimony that the defendant agreed to pay the plaintiff for his services, and the