122 Wis. 323 | Wis. | 1904
On tbe former appeal of tbis case to tbis court, it was said that, upon tbe record as it then stood, it did
“not appear, as matter of law, that Bostwick was chargeable with knowledge of tbe fraud found to have been practiced upon him till be obtained actual knowledge thereof. That leaves tbe question whether be ought to have read bis policy when be received it, notwithstanding tbe assurances accompanying it, one of tbe facts not covered by tbe finding. It must be solved before a complete disposition of tbe case can be made.”
It was furthermore held that respondent’s responsibility in tbe matter must be tested by what persons of brdinary care generally do under like or similar circumstances. Tbe court particularly specifies tbe material and necessary question of fact which then remained unsolved and undetermined upon tbe trial in tbe lower court. Tbis conclusion was reached after a painstaking study of tbe issues, in view of tbe evidence, which is tbe same as tbe evidence now before us. Tbe fact that some of respondent’s testimony has been re-examined by tbe trial court, and is now returned as a supplemental bill of exceptions, in tbe form of questions and answers, taken from tbe minutes of tbe official court reporter, can in no way present a different record or state of facts from that upon which tbe former decision was based.
Upon that appeal it was held that since it appeared that “tbe unsolved issue of fact might go either way,” leaving tbe situation of such doubtful character that, if resolved by this court, an injustice might be done the parties, no judgment would be directed to- be entered by tbe trial court, but tbe trial court would be required to pass upon such issue, and then render judgment accordingly, under tbe law as indicated*
No other questions arise for determination.
By the Gourt. — Judgment affirmed.
