Chamberlain v. Dickey

31 Wis. 68 | Wis. | 1872

Oole, J.

The only question, arising upon this record is one of fact upon tlie evidence.

It is claimed "by the counsel for the plaintiff, that the circuit court should have granted the motion for a new trial, for the reason that the verdict was entirely unsupported by the testimony. It is said that the evidence conclusively shows that the horses all the time really belonged to the defendant, and that George W. Dickey was fully authorized, as his agent, to contract the indebtedness disclosed in the plaintiff’s account. It seems to me that the weight of testimony does tend to establish •those facts; but still it must be admitted that there is considerable evidence in the case, which likewise tends to show that the defendant had sold the horses in question to his brother George, and that the latter, in his dealings with the plaintiff, acted for himself alone, upon his own responsibility. The defendant testified, in substance, that he sold the horses to his brother, and surrendered the possession to him, with the understanding that he was to be paid the first money which George should receive on their resale; and, if not sold by George, then they were to be subject to his order at any time. This is as we understand his account of the transaction, and it is confirmed by the written memorandum of the terms of sale which was made by the witness Dutton. If it was really the intention of the parties that the title to the property should pass to George, so that, if the horses were injured or killed in the transportation to New York, the loss would fall upon him, then this constituted him the owner. It is true, George Dickey testifies that the horses all the time belonged to the defendant, and that he was sent by him to New York with them, for the purpose of selling or disposing of them there for the defendant’s benefit. It is very apparent that there is an irreconcilable conflict in the testimony upon the point whether the horses, when shipped at Racine, were really the property of the defendant or George "W". Dickey, and whether the latter was employed as agent to dispose of them for the defendant, or whether he was acting for himself alone. It was the province of the jury to weigh and consider the probabilities of these conflicting statements, and to say which was the better entitled to credit. If George was the owner of the horses, then there is no ground for holding that the indebtedness contracted by him about his own property constitutes a legal liability against the defendant. The jury, under a charge of the court, not excejDted to on either side, have passed upon the question of the ownership of the horses before Houghton took possession of them for the defendant, and whether George W. Dickey, in his transactions with the plaintiff, was acting as agent for the defendant or upon his own responsibility. We do not feel warranted in disturbing the verdict upon the state of the testimony disclosed in the record. Eor we think there is no ground for saying that it is entirely unsupported by the evidence.

By the Court. — The judgment of the circuit court is affirmed.

Lyon, J., did not sit in this case.