32 Wis. 587 | Wis. | 1873
Tbe judgment must be reversed for error in tbe rejection of testimony, and for improper direction by the court to tbe jury to find a verdict for the plaintiff.
Tbe court erred in sustaining the objection to tbe question put to tbe witness Paine, as to what disposition tbe trustees made of the report of tbe committee appointed to settle tbe endowment fund account of the defendant. Mr. Paine and Mr. Jennie were tbe committee appointed by tbe board of trustees of tbe plaintiff to settle that account with tbe defendant, and they did settle it with him [in June, 1862], and reported their action to the board. Mr. Jennie testified : “ We stated to tbe board why tbe [Howard] note was left in Mr. Smith's bands, on account of its worthlessness, and tbe embarrassment of Mr. Smith’s relation to it; I expressed my con
It was error also to exclude the answer when the witness Jennie was requested to go on and state what was done further in reference to the Newhall note on the part of the committee. The witness had just stated that among other papers the defendant passed over to the committee the note he received from Mr. Newhall; and it was clearly competent and material, under the circumstance's, that all that occurred between the committee and the defendant with respect to the note should have been disclosed before the court and jury.
. Again, it was error, we think, not to permit the defendant to testify why it was that in the conversation with the witness
And the court was wrong in directing a verdict for the plaintiff. The case should have been submitted to the consideration of the jury. The rule in cases of the kind is, that when there is any doubt as to the facts, they must be found by the jury, and it is improper for the court to direct a verdict. This point was examined in Cutter v. Hurlbut, 29 Wis., 152, and such is the rule there stated. To justify the direction on a question of fact, the evidence should be clear and uncontra-dicted, and all one way, or the weight and effect of it should be so obvious and decided in favor of the direction given by the court, that a verdict to the contrary would at once be set aside. The rule is the same as that which obtains where a motion for a nonsuit is made, and where it is held that tbe court must look at the facts in the most favorable light for the plaintiff in which the jury would be at liberty to find -them, and then be able to say that there is no evidence which would justify a verdict in his favor. Sutton v. The Town of Wauwatosa, 29 Wis., 21.
The evidence given on the trial did not warrant the interference of the court in withdrawing the case from the consideration of the jury, as a slight examination of the bill of exceptions will show. The bill is certified to contain all the evidence, so that we have it all before us. Besides the testimony of the witnesses Jennie and Paine above referred to, there was
We are aware of the strong tendency of the evidence on the part of the plaintiff to establish its claim against the defendant; but still it is not of a nature to be conclusive against him. There is nothing in it of a kind to estop the defendant from denying his liability, as counsel for the plaintiff seem to suppose. If the defendant found it for his advantage, or saw fit for any purpose, to state or represent that he was acting as agent for the plaintiff in the collection of the note, when in reality he was not, he must be content to let a jury put such interpretation upon his statements and representations as, under all the circumstances, they may see fit to do in this action. It will be the defendant’s own fault if in this manner he has transformed himself into an agent when in fact he was not But in any event the defendant will be entitled to have the entire evidence respecting the alleged rejection of the donation by the board of trustees before the court and jury; and as the evidence upon this question stood at the time the verdict was directed for the plaintiff, we are satisfied such direction was unauthorized.
The objection that the statute of limitations has run upon the
Tbe foregoing views lead necessarily to a new trial, and sucb must be tbe order of tbis court.
By the Court.— Judgment reversed, anda new trial awarded.