John Hoffmann & Sons Co. v. Parks, 175 Wis. 303

175 Wis. 303 | Wis. | 1921

Jones, J.

The principal exception of the defendant’s counsel is that the court erred in submitting the special verdict in the alternative.

Passing that subject for the present and assuming that the error was not fatal, the finding of the jury is based on such evidence that we cannot properly set it aside. Both the defendant and Hunt, the indorser of the note, were undoubtedly liable to the plaintiff. It does not seem inherently unreasonable that there should have been an agreement to apply the payments made by the defendant on this indebtedness. It was conceded by Hunt that this would be the easiest way to pay the indebtedness. If some such arrangement had not been made it would have been natural for the plaintiff to insist upon payment of the note in a manner which might have been more burdensome to both Parks and Hunt. The testimony makes it clear that Hunt expected the rent checks to be applied as they were, and throughout the whole period the plaintiff made the application relying on the supposed agreement.

To this agreement Riemer testified very positively. Although Hunt testified that he did not remember that Parks was present when it was made, he did not directly deny the agreement, and' his whole course of conduct seems to us to corroborate the testimony of Riemer.

There is no rule of law which would prevent the three parties interested from making such an agreement. The liability of the defendant and Hunt upon the note and the mutual agreement of all the parties interested would be ample consideration. Mainzinger v. Mohr, 41 Mich. 685, 3 N. W. 183; Nat. Bank of Delavan v. Cotton, 53 Wis. 31, 9 N. W. 926.

It is earnestly argued by defendant’s counsel that the verdict was fatally defective for uncertainty. It is undoubtedly true that ordinarily a verdict in the alternative is not to be approved, and such verdicts have often been disregarded. Thus where a jury was asked to find whether there was a contract express or implied that defendant should receive compensation for certain services, and an affirmative answer was given, the court said:

“This answer not only leaves it uncertain whether the jury found there was an express or implied contract between the parties, hut we are unable to ascertain whether the jury agreed that either contract was made. A part of them may have found there was an express contract, but no implied one; and the others may have reached the conclusion that there was an implied, but no express contract. Thus it is rendered uncertain.whether the jury in fact determined this issue. . . . Under these circumstances the question is faulty for duplicity, and is fatally defective for uncertainty as to the determination of the issue.” Lowe v. Ring, 123 Wis. 370, 375, 101 N. W. 698.

There have been numerous other decisions holding the same general rule.

Does this rule apply in the present case ? Although there was considerable testimony as to facts more or less collateral, the whole effort on the part of the plaintiff and defendant during the trial was directed to the question whether or not an agreement was made between the parties regarding the application of the rent checks to' the note in question. Riemer testified to a positive agreement at a given time and place that the rent checks should be thus applied. Parks denied the agreement. There was no contention by either party that any other agreement was made. On the motion for a new trial the court said:

“. . . It was not contended upon the trial that if the plaintiff had a right to apply some checks upon Parks’ note it had not the right to apply all of them that were released by Hunt'.”

We consider that the trial court rightly came to the conclusion that if Parks agreed that the rent money might be applied as testified to by Riemer, the agreement included all the rent checks that were in fact so applied.

In view of the issues which were tried and the whole course of the trial, we consider that the form of the verdict did not mislead the jury and that there was no testimony from which they could have inferred that some of the payments applied upon the note were included in the agreement and that others were not, and we have come to the conclusion that no injustice was done by the submission of the verdict in the form it was left to the jury. Berger v. Abel & Bach Co. 141 Wis. 321, 124 N. W. 410; Korn v. Pfister & Vogel L. Co. 147 Wis. 526, 133 N. W. 586. See Tosty v. Morgan Co. 151 Wis. 601, at p. 604 (139 N. W. 402).

Moreover, it does not appear that any exception was taken to the form of the verdict or that the attention of the court was called to it until after the trial or that any other form of question was proposed by defendant’s counsel. If the verdict was objectionable in form, counsel should have objected and entered due exception to the refusal of the court to correct it. Dolphin v. Peacock M. Co. 155 Wis. 439, 144 N. W. 1112; Moering v. Falk Co. 155 Wis. 192, 144 N. W. 207; Landauer v. Kasik, 155 Wis. 376, 144 N. W. 974; Ludvigson v. Superior S. B. Co. 147 Wis. 34, 132 N. W. 621.

By the Court. — Judgment affirmed.