Kiefer-Haessler Hardware Co. v. Paulus

149 Wis. 453 | Wis. | 1912

WiNsnow, O. J.

It seems that the court was entirely right in dismissing the action as to the defendant Coils. Without stating the evidence in detail, we think it clearly appeared that Kuchiaras was in fact the sole party interested, and that the action should have been brought against him alone. The court was also right in construing the contract in question as a chattel mortgage or security for the payment of the purchase price of the articles rather than as a lease. Under the circumstances shown by the evidence the intention of the parties. is so plain, notwithstanding the formal words appropriate to a lease, that no other construction is permissible.

The proof that a tender of $165 or more was made on be-balf of Kuehiaras April 13tb and renewed on April 14tb was absolutely undisputed upon the trial, and the tender was kept good by the deposit of the money in court. Such being the case, the trial court could pursue but one course, namely, non-suit the plaintiff. When the tender was made and kept good, the title to the property passed to the defendant. The newly discovered evidence which formed the basis of the motion for a new trial consisted of a letter written by the attorney of the defendant Kuchiaras to plaintiff’s firm on ,April 14, 1910, in which there are expressions which indicate that the tender made on the previous day was the sum of $175, and was intended to cover not only the contract price .of the articles in question, but the balance due upon an open account which plaintiff claimed to be about $100. If this were found to be the fact, then there would have been no sufficient tender. The difficulty is that there is no sufficient excuse for not producing the letter upon the trial. It was not lost, but was in the plaintiff’s letter files, and due preparation for trial would certainly suggest, if not require, careful search for letters on the subject, especially in view of the fact that the answer specifically pleaded the making of a tender and its exact date. It seems that the trial court was justified in denying the motion on the ground of lack of diligence in preparing for trial.

. It is said that the evidence as to damages upon the counterclaims is insufficient, and too vague to sustain the findings of the jury. It is true that the evidence is not as satisfactory as could have been desired, but we are unable to say that there is not some evidence upon which the conclusions of the jury can stand.

Some minor exceptions are urged and have been carefully examined. They are not deemed to possess any substantial merit, nor are they of sufficient importance to warrant detailed treatment.

By the Court. — Judgment affirmed.