Oconto Brewing Co v. Cayouette

138 Wis. 664 | Wis. | 1909

Kerwin, J.

It is insisted by appellant that the court did not grant a new trial under its discretionary power in that regard, but because of error of the court, and that this is manifest from the fact that no costs were awarded as a condition. It is very plain from the order itself, as well as from the fact that no costs were imposed as a condition of the new trial, that it was granted for error of the court. Frost v. Meyer, 137 Wis. 255, 118 N. W. 811; Giese v. Milwaukee E. R. & L. Co. 116 Wis. 66, 92 N. W. 356. While considerable discretion is vested in tbe tidal court respecting tbe granting of a new trial, yet, where it is plain that tbe new trial was granted for alleged error of law committed by tbe trial court, this court will review tbe question of law so presented. Duffy v. C. & N. W. R. Co. 34 Wis. 188; Walter A. Wood R. & M. Co. v. Stenel, 71 Wis. 71, 36 N. W. 636; Jones v. Evans, 28 Wis. 168; Fairbanks v. Holliday, 59 Wis. 77, 80, 17 N. W. 615.

There are several alleged errors of law committed by tbe court upon the trial and covered by the motion for a new trial, still it does not definitely appear from tbe record upon what ground the trial court held that tbe verdict was contrary to law. We assume, however, from tbe argument of counsel on both sides that in granting tbe new trial tbe court below came to tbe conclusion that tbe alleged contract for tbe purchase of beer referred to in tbe statement of facts was void, either for want of mutuality or for want of consideration, or both; hence that tbe answer, and tbe evidence offered to support it, constituted no defense. Therefore tbe plaintiff was entitled to recover as a matter of law upon tbe showing made.

We cannot agree with this conclusion. We see no reason why a valid contract might not have been made based upon tbe alleged agreement for tbe furnishing of beer by tbe plaintiff to tbe defendant gratis, as specified in tbe contract; and whether this contract could be enforced while executory for want of mutuality we need not consider, because it appears that when tbe action was brought tbe contract bad been fully performed and was then an executed contract, and under tbe repeated decisions of this and other courts, even though a contract is not enforceable while executory by reason of want of mutuality, it becomes valid when executed. We are therefore of tbe opinion that the evidence was sufficient to support the verdict of tbe jury in tbe defendant’s favor on tbe alleged contract and execution thereof, and "that such finding is a complete defense to tbe plaintiff’s cause of action. Assmn-ing, therefore, as we must from the record that the new trial was granted on the grounds heretofore suggested, the court was in error in holding that the verdict was contrary to law. The order should therefore be reversed.

By the Gourt. — The order appealed from is reversed, and the cause remanded for further proceedings according to law..