91 Wis. 393 | Wis. | 1895
There is evidence tending to prove that, of the milk delivered by the defendant to the plaintiff’s factory, some had been skimmed by the defendant and some had been strained by the defendant. But such evidence was flatly contradicted. The court submitted to the jury the question whether any of the milk so delivered had been skimmed by the defendant, and, if so, what, if any, damage the plaintiff had thereby sustained. As the verdict was in favor of the defendant, it is manifest the jury must have believed the evidence on the part of the defendant on that branch of the case, since the skimming of the milk would necessarily have rendered the milk less valuable.
But the court in effect refused to submit to the jury the
True, the defendant agreed in writing not to strain any of the milk so delivered, and that agreement was at first admitted in evidence and afterwards excluded. Had the writing remained in evidence it would, with the plaintiff’s other evidence, at most, have proved a technical breach of the contract. There still would have been a failure to prove any
The other errors assigned must be overruled for the reasons already given.
■ By the Court.— The judgment of the county court of Dodge county is affirmed.