156 Wis. 346 | Wis. | 1914
The judgment must be reversed.
From the statement, which is a pretty accurate picture of the proceedings in this case, we cannot escape the conclusion that counsel supposed, and had good reason to suppose, that question 1 covered the vital matter in the case; that respondents’ counsel likewise supposed; and that the court submitted the question in such belief. It was a misuse of sec. 2858m, Stats., to submit to the jury the cause upon one theory and then dispose of it upon another, referring to sec. 2858m for assistance. That section was not intended as an instrumentality for any such use. True, as the trial court thought, it was essential to a recovery by plaintiff to satisfy the jury that defendants for themselves made the special contract as regards the capacity of the machine. The record shows counsel understood that in commencing the action and in every step taken on the trial down to the last opportunity for saying anything or doing anything in the case.
That they were taken by surprise, in the end, by the decision that the special verdict submitted by the court to cover the conflicts did not cover the most vital matter, and that there was no evidence to support plaintiff’s side, is most natural. Evidently, there was no one connected with the case who entertained such an idea. Counsel for defendants did not, else they would have moved for judgment notwithstanding the
True, there was no evidence that the actor on defendants’ part expressly stated that he made the agreement for themselves as principals; but the cause of action sued on involved that very matter as the vital point. The only fair view of the evidence is that it was directed to such point. The jury must have so understood it. We could not so reflect on counsel as to think that they traveled the whole course of this simple case without knowing what was required to malm a good cause of action for their clients and whether the evidence produced raised a fair jury question in respect to the matter and supposed, and had the best of reason for supposing, it was covered by the verdict.
The right of appellant seems too plain to warrant further discussing the matter. That the evidence raised a fair jury question as to whether defendants made the contract as claimed; that the jury understood, and had a right to understand, such issue was covered by the form for verdict submitted for their use and that they answered the questions for the purpose of finding that defendants for themselves made the contract as to the capability of the machine for plaintiff’s work, seems plain.
That it was perfectly competent for defendants, though acting as agents, to bind themselves by a contract entirely outside the scope of their agency, and for the purpose of promoting their business as agents, there can be no doubt. Hull v. Brown, 35 Wis. 652. The evidence tended to show that such a contract was made. The jury intended to find that
By the Court. — The judgment is reversed, and the cause remanded for judgment in favor of plaintiff.