WALSH v. COLCLOUGH, 56 F. 778

BAKER, District Judge, (after stating the facts.) This action was brought by landlord against tenant to recover rent for certain demised premises, and the building erected thereon. Numerous errors have been assigned by the plaintiff in error, but only two are insisted on by counsel in argument. These arise upon the rulings of the court in the admission of evidence.

It is claimed that the court erred in admitting evidence to show that, after the execution of the contract, the building then contemplated and mentioned therein was changed -in various particulars, largely increasing the cost, by verbal agreement of the parties, at the request of the tenant, and upon Ms promise to pay additional rent upon such increased cost at the rate of 9 per centum per annum, as provided ■ in the contract.

It is insisted that this evidence was inadmissible — First, because at variance with the allegations of the complaint; and, second, because the verbal agreement to pay the additional rental based on the increased cost is void under the statute of frauds. Under the Wisconsin Code, which furnishes the rule of decision in this case, no variance between the allegations and the proofs is deemed material unless it actually misleads the adverse party to his prejudice. Railroad Co. v. Shoyer, 7 Wis. 365; Knowlton v. Bowron, Id. 500; Herrick v. Graves, 16 Wis. 157; Harper v. City of Milwaukee, 30 Wis. 365.

A careful examination of the complaint and the evidence exhibited in the bill of exceptions satisfies us that there is no material variance between the allegations and the proofs. Besides, the bill of exceptions does not show that this ground of objection was distinctly made in the court below. The objection that the evidence tends to prove a different canse of action or defense from that alleged in the pleadings must be made specifically.

It must be such as to direct the attention of the court to the precise ground of inadmissibility, so that, if the objection had been made, the defect might have been remedied by amendment. Bowman v. Van Kuren, 29 Wis. 209. The objection disclosed by the record, being general, was for this reason rightly overruled. It is further insisted that the verbal agreement to pay the additional rent based on the increased cost of the building is void, under the statute of frauds, (Rev. St.

Wis. § 2204) The; theory on which the case was tried by the court, and upon which its find tugs are based, is that, as to ihe building described in the contract, the defendant in error was limited to the amount fixed by the contract, and he could only charge rent therefor based on the limit of §20,000, although the building actually cost about .§2,000 in excess of that amount.

What, the court did allow was the additional rent based on the cosi of the additions to the building described in the contract, such additions having been made after the execution of the contract, and pursuant to the verbal agreement of the parties. The defendant in error performed the written contract, and also the verbal agreement thereafter made, by the erection of a building as provided in the written contract, with such additions and changes as had been verbally agreed upon by the parties.

When the building had been completed to the satisfaction of the plaintiff in error, he accepted possession of the demised premises and the building erected thereon, and used and enjoyed the same from December 1, 3889, to May 1, 1891. He now contends, when sued for the rent, that the landlord cannot recover the i-ent upon the increased cost of the building, caused by the additions and changes made at his request and nj>on his promise to pay the additional rent, although he has accepted and enjoyed the benefit of such increased cost, because the additions and changes were made in pursuance of a verbal agreement.

This contention has no foundation either in law or morals. When, in pursuance of a voidable verbal agreement, a landlord has erected a building for a. tenant, and at his request, who has taken possession of it, and used and enjoyed it, he cannot, when sued for rent past due, defeat the action upon the ground that the agreement was not in writing. The statute does not apply to such an executed verbal agreement.

When the agreement, though required to be in writing, has been executed, and nothing remains to he done except to pay the stipulated consideration, the statute is no defense to an action brought, to recover the money which the party is bound by the agreement; to pav. Browne, Frauds, §§ 110, 117, and cases cited; Wetherbee v. Potter, 99 Mass. 354; Worden v. Sharp, 56 Ill. 104; King v. Smith, 33 Vt. 22; Remington v. Palmer, 62 N. Y. 31; Brandeis v. Neustadtl, 13 Wis. 142; Niland v. Murphy, 73 Wis. 326, 41 N. W. Rep. 335; Pireaux v. Simon, 79 Wis. 392, 48 N. W. Rep. 674; Koplitz v. Gustavus, 48 Wis. 48, 3 N. W.

Rep. 754; Wood, Frauds, 27, note 5. The performance of the verbal agreement, while it remained executory, could not have been enforced by either party against the other; but it has been mutually performed by the parties in every part, except only in the refusal of the tenant, after having enjoyed the demised premises and building, to pay the stipulated rent therefor. This he cannot avoid by interposing the statute of frauds as a defense. We have concluded, though not required to do so, to examine and decide the questions argued by counsel as though they had been- properly saved in the record.

Only a general objection to the admissibility of the evidence was made at the trial. The grounds now advanced were not called to the attention of the court below by any objection directing its attention to them. The general rule is that every objection to evidence must, in order to avail the party making it, specify the grounds on which it is made, and,if the evidence is received over a general objection specifying no grounds, its reception cannot be alleged as error in this court, unless it appears that the same was incompetent in the case for any purpose. State v. Norton, 46 Wis. 332, 1 N. W.

Rep. 22, and cases there cited; Burton v. Driggs, 20 Wall. 125; Belk v. Meagher, 104 U. S. 279. The judgment must be affirmed, and it is so ordered.