89 Wis. 146 | Wis. | 1894
The eleventh finding of the special verdict is that the terms, “ Patent applied for on thermostat and automatic machine,” in the contract, were used with reference to the automatic machine involved in the Butz interference proceedings. This was the clock-work device for automatic adjustment of the thermostat and automatic machine at predetermined times. So far as the question being now considered goes, the plaintiff’s right to.recover depends on the further fact that that application was allowed in substance. If it was, the condition on. which the right of the defendant to have his purchase money returned depends has not arisen. If it has been allowed the plaintiff is, other conditions not preventing, entitled to recover the balance of the purchase money. If this application has not been allowed in substance, the defendant is entitled to have the purchase money, to the amount of $12,500, returned. The balance of purchase money unpaid is less than that sum. The law will not require the defendant to pay money which, if he had paid, he would be entitled to have returned. The twelfth finding is that all the patents applied for, and on which applications were pending at the date of the contract, for thermostat and automatic machines, were allowed. If both findings are true and consistent with the other findings of the verdict, then, clearly, the plaintiff is entitled to recover, for then all conditions prerequisite are fulfilled. Then the particular patent applied for, on whose disallowance in substance the right of the defendant to the return of the money depended, is included among the patents which
A special verdict must find all the facts essential to a recovery, and nothing can be supplied by way of intendment. This is the rule. 2 Thomp. Trials, § 2651, and cases cited in notes; Event v. Walworth Co. Bank, 13 Wis. 419; Cotzhausen v. Simon, 47 Wis. 103. The rule is satisfied if all the facts essential to a recovery, which are controverted by evidence upon the trial, are speciahy found in the verdict. So the formal verdict may be sufficient, although it does not find specially facts which, although put in issue by the pleadings, are yet not controverted on the trial, or are established by the undisputed evidence. Stringham v. Cook, 75 Wis. 589, 594; Montreal R. L. Co. v. Mihills, 80 Wis. 540, 551; Hart v. West Side R. Co. 86 Wis. 483, 489. No doubt the trial court, in passing on the sufficiency of the special verdict, must treat material facts so established by the undisputed evidence in the same manner and to the same effect as if they were formally incorporated into the verdict. Or it may formally incorporate them into the verdict by amendment. 2 Thomp. Trials, § 2656. The difference is of form
Since the special verdict was so defective as that it should be set aside, it could not well be error to refuse judgment upon it to either party.
By the Court. — The three orders of the superior court of Milwaukee county, appealed from, are each affirmed.