134 Wis. 443 | Wis. | 1908
This action was begun before a justice of the peace. The defendant appealed from the judgment against him to the circuit court, where the cause was tried upon the oral pleadings presented before the justice, and where the jury rendered a verdict against the defendant for $50, upon which the judgment now appealed from was entered.
The appellant assigns error in denying his motion for the direction of a verdict in his favor at the close of the plaintiff’s testimony and before the defendant had rested his case. The motion was properly denied because prematurely made. Appellant’s counsel may have been misled by the report of Adams v. Snow, 106 Wis. 152, 81 N. W. 983, and Portance v. Lehigh Val. C. Co. 101 Wis. 574, 77 N. W. 875. In each of these cases the defendant had offered testimony and rested his case before the motion was made, and the court corrected its statement that a nonsuit was granted by making the proper direction of a verdict. Oases and Briefs, vols. 592, 631. It is not proper to direct a verdict before both parties
The appellant next assigns error because the circuit court overruled his motion to direct a verdict at the close of all the testimony and after both parties rested. This motion is based upon the claim that there was no evidence from which a jury could find a verdict in favor of the plaintiff, giving such evidence the most favorable construction to which it was entitled in order to sustain a verdict. The evidence tended to show that one Kundinger was the owner of an eighty-acre tract of land and the appellant was the owner of a forty-acre tract of land. Kundinger asked the plaintiff to see the defendant and try to make an arrangement to exchange the forty-acre tract for the eighty-acre tract, saying to plaintiff: “If you can make anything out of this, you can have that for your commission.” Plaintiff met defendant and proposed the exchange, provided the defendant would pay $50 to hoot. Defendant said to plaintiff: “I suppose you get the $50;” and plaintiff answered, “Yes.” Defendant answered: “That is right. A fellow shouldn’t do business for nothing.” Plaintiff took defendant out to show him the eighty-acre tract, and before starting said to him: “This will cost you $50 will he my commission.” Defendant seemed to be satisfied with that, for he looked the land over and afterward said to the plaintiff that plaintiff had made or earned $50. The plaintiff paid for the abstract and the horse and vehicle in which he went out with defendant to see the land. When the deeds were made out, the scrivener, Mr. Aschenbrenner, asked whether he would keep the papers until the plaintiff got his money and the plaintiff said: “Ho; Van Ostrand will send me a check. He is all right.” It does not appear, how
By the Gowrt. — The judgment of the circuit court is affirmed.