134 Wis. 582 | Wis. | 1908
Error is also assigned because of language used by the court in a colloquy between the court and counsel for appellant. The language complained of was an admonition coming from the court to the effect that after the court had ruled twice with reference to a certain question it was unprofessional and uncourteous for appellant’s counsel to persist in putting the question for the purpose of procuring an answer considered improper by the court, and that counsel had the record covering the point completely and that he must not offend in that way agáin. It appears from the record that counsel did persist in putting substantially the same question several times in succession after it had been ruled improper. Without prolonging the discussion upon this point we think it clear that there was no prejudicial error in the language used under the circumstances, hut on the contrary that the purpose of the court was to confine counsel within proper limits and to prevent him from persistently endeavoring to draw out evidence from the witness after rulings of the court that the same was improper.
Error is also assigned because the court refused to allow Hein to answer the following question: “You acted as assist
Error is also assigned in refusing the offer of plaintiff to show by the witness Hein that it was no part of his duty to place in order or repair machines about which complaints were made. This evidence was ruled out by the court below on its own motion, for the reason that the witness had been exhausted by direct and cross-examination, and for the further reason that it appeared that the witness was one of the agents who sold the machine to respondent. Aside from the grounds suggested by the court that the offer came too late, it is clear, under the holding that Hein was a local selling agent who made the sale, that the testimony was immaterial.
Complaint is made of the instruction wherein the words “with such proper assistance from the defendant as was necessary” were used in lieu of the words of the contract, viz., “the purchaser rendering necessary and friendly assistance,” and it is claimed that the expression used is not equivalent to “necessary and friendly assistance.” We cannot agree with counsel in this contention, and think the language of the charge was broad enough to cover and include what was intended by the words of the contract and must have been so understood by the jury. “Such proper assistance from the defendant as was necessary” under the subject matter of the contract would seem naturally to include “necessary and friendly assistance,” but, aside from this, the court also in. the charge in this connection in referring to the warranty used the words of the contract, and the jury were told “this stipulation the defendant was bound by.”
Complaint is also made because the court was not more specific in its instructions respecting the provisions of the
It is further argued that the instructions given were faulty in not stating from what period the reasonable time to remedy defects should he computed. Rut the jury were told that Hein came to respondent’s place and examined and operated the machine with a view of ascertaining whether the machine was defective or working properly, and in view of this it was not necessary that respondent give any written notice, and there is no dispute in the evidence on this point. It is therefore clear from the evidence and the charge that the reasonableness of the time should be computed from the time mentioned in the charge when Hein examined and operated the machine with a view of ascertaining whether it was defective. The real contention of appellant upon this point is that the reasonableness of time should have been limited to a reasonable time after giving written notice. This contention is untenable, since written notice had been waived.
It is contended, further, that error was committed in telling the jury that, if they found the machine did not fulfil the warranty in the respects mentioned, it was proper for them to consider, on the reasonableness of the opportunity or time allowed for remedying the defects, what, if anything, was stated relative to the opportunity or time desired or requested to be given for such purpose at the time Hein exam
Several errors are also assigned on the refusal of the court to give specific instructions requested. We do not regard it necessary to review these in detail, since many of them are sufficiently covered by what has been already said; others are clearly inapplicable to the case and should not have been given. So there was no prejudicial error in refusing to give any of the instructions requested.
Error is also assigned because the court refused to set aside the verdict and grant a new trial. This assignment is based upon the errors heretofore discussed and also upon the further ground that the verdict is contrary to the evidence. It is insisted that upon the undisputed evidence on the operation of the machine it appears that it was not operated according to the printed directions. But after a careful examination of the evidence upon this point we think the question was fairly for the jury. The respondent testified that he operated the machine the way it was set up by Rein and Klugel and according to the instructions given. So it cannot be said that there is no credible evidence to support the verdict upon this point, and where there is any credible evidence to go to the jury on the question submitted we cannot disturb the finding. This rule is so well estab
By the Court. — The judgment of the court below is affirmed.