Gunsten v. Green

153 Wis. 413 | Wis. | 1913

Siebecker, J.

The main issue presented by the plaintiff’s complaint and the answer thereto is, Did the sale of nine horses by the defendant to the plaintiff include the three horses the plaintiff now claims and which were not delivered to him ? This issue was specifically submitted to the jury by questions 1 and 3 of the special verdict. The jury found against the plaintiff upon this issue. An examination of the evidence material to this question discloses that there is a conflict in this evidence and the court properly submitted this controversy to the jury for determination. In the light of the evidence on this question the jury’s findings cannot be disturbed. It cannot be said that such findings are against a clear preponderance of the evidence and that the trial court’s action was clearly wrong. It is furthermore contended that the court erred in overruling defendant’s motion for a new trial upon newly discovered evidence on this question as to whether or not the horses plaintiff now claims were included as three of the nine horses he purchased from the defendant. We have examined the alleged new evidence 'and find it wholly fails to establish a ground for a new trial. It is obvious that it is cumulative evidence on the issue tried and that it furnishes no substantial grounds for believing that had this evidence been presented to the jury at the trial a different result from the one expressed in their verdict would have been reached by them. The exception to the court’s ruling permitting the defendant to testify to the value of the horses included in the sale is without merit. The evidence was proper in view of the plaintiff’s evidence 'as to what horses he understood were included in the $700 purchase price and as to what interest Loomis had in the horses under an arrangement with the defendant.

It is' argued that defendant perpetrated a fraud on the plaintiff by colluding with Loomis to induce plaintiff to sign a judgment note 'and chattel mortgage while plaintiff was in a state of intoxication. ' The note plaintiff signed was for $700, due in thirty days. It is conceded that the amount is correct and that it runs for the period agreed upon by the parties. The chattel mortgage is in the usual form, given to secure payment of this note, and covers nine horses, describing them. The defendant testifies that the horses described therein are the nine horses sold to the plaintiff; that the plaintiff took actual possession of seven of them at the time of the sale and that the remaining two horses were in the hands of persons who had bargained for them; that the terms of their sale were explained to and understood by the plaintiff ; and that he bought them under the arrangements for their sale to the persons in whose possession they then were. The facts and circumstances and the evidence of Loomis sustain the claim of defendant as to the terms and condition of the sale.

The jury found that the chattel mortgage correctly describes the horses purchased by the plaintiff at the time in question. Tbe evidence 'amply sustains the jury’s findings that plaintiff was capable of fully understanding and appreciating the contents of the note and mortgage and that he knew what horses were described in the mortgage when he signed it. In the light of all these facts, there is no room for argument upon the question as to whether the defendant participated in bringing about plaintiff’s intoxication and wrongfully took advantage thereof by inducing plaintiff to sign these instruments and thereby perpetrated a fraud on him. Nor can it be said that the court committed error in submitting the special verdict in the form he did, as to the question of fraudulent and wrongful conduct to induce the plaintiff to execute the note and mortgage while in a state of intoxication. The verdict covers these questions sufficiently to resolve all disputes in respect to them. The record shows that the parties had a fair trial, that the issues were fully presented to the jury, that they determined all material issues by their special verdict, and that the court committed no error affecting any substantial rights of the appellant.

By the Court. — The judgment appealed from is affirmed.