Ott v. Cream City Sand Co., 166 Wis. 228

Ott v. Cream City Sand Co.

166 Wis. 228 | Wis. | 1917

Eschweiler, J.

Sec. 2857a., Stats., provides that when in a jury trial all tbe parties to tbe action shall, without reservation, move the court to direct a verdict, such motions shall, *232unless otherwise directed by the court, he considered as equivalent to a stipulation by the parties waiving a jury trial and submitting-the entire case to the court for decision of the facts as well as the law. Although the plaintiff did not in his motion expressly request any particular judgment other than a dismissal of the counterclaim, yet, upon the state of the record as it then stood and the rulings upon the evidence by the trial court, the dismissal of the counterclaim would have necessarily resulted in judgment for the plaintiff for the amount of his claim, and therefore such motion could properly he considered as one in effect for a directed' verdict in plaintiff’s favor. The defendant moved for judgment in its favor. Neither the litigants nor the court at that time referred to the provisions of this sec. 28510, hut the situation made by the parties brought the case clearly within this section, and we hold that there was a waiver of jury trial and a submission of the entire case to the court for decision of the facts as well as the law.

The so-called ledger, not being the book in which the first or original entries of the account were made, was not admissible under sec. 4186 as presumptive evidence, in and of itself, of the charges therein contained. Although the evidence as to the entries in this book was meager and unsatisfactory, yet there was sufficient in the testimony of the plaintiff and his wife as to the correctness of these entries and the time and manner of making the same that they might be properly used as memoranda to refresh the recollection of the witnesses as to the transactions in question, and after such use become admissible in connection with such testimony, under the rule in the cases of Campbell v. Germania F. Ins. Co. 163 Wis. 329, 338, 158 N. W. 63; Manning v. School Dist. 124 Wis. 84, 97, 102 N. W. 356; Bourda v. Jones, 110 Wis. 52, 58, 85 N. W. 671; Riggs v. Weise, 24 Wis. 545; Schettler v. Jones, 20 Wis. 412.

*233But the judgment of the civil court may well he upheld on another ground and from undisputed, facts in the record. While the so-called slips or bills delivered in each instance with the deliveries of the groceries or meats and retained by the defendant were apparently offered in evidence by plaintiff for the purpose of showing delivery only and held to be admitted by the court only for that purpose, yet, being before the court, they now ought to be given their full and proper effect in connection with the other undisputed facts. We are satisfied that there is complete support for the conclusion to which the trial court came, viz. that the goods to the amount and for the prices charged as contained in those slips had been delivered by plaintiff to defendant, from the evi.dence of the sending to defendant from time to time these bills and statements showing the exact items and the balances of the running account for each month and also the monthly statements, together with the retention of the same by defendant without objection and its payments thereon during the period of the deliveries and for such a time after the ■final deliveries as must he held to have been more than sufficient in which defendant might have examined the accounts and found grounds for objection if there were any. Especially is that so where, as here, defendant’s attention had been challenged in July or August to the possibility of there being just such fraud or falsification as it attempted to set up in its answer. Its retention without objection of the statements, and payments made thereon during the time of and after such deliveries had ceased, all without question or objection, were not only ample prima facie evidence of the correctness of the account and of the fact of the delivery of the goods, hut might well have been held by the trial court, in the absence of any evidence to the contrary, conclusive evidence thereof. Gurnett v. J. H. Flick C. Co. 163 Wis. 574, 158 N. W. 325; Miller v. Ryder, 145 Wis. 526, 130 N. W. *234518; Ripley v. Sage L. & I. Co. 138 Wis. 304, 119 N. W. 108; Jones v. De Muth, 137 Wis. 120, 118 N. W. 542; Rose v. Bradley, 91 Wis. 619, 65 N. W. 509; Shaw v. Lobe, 58 Wash. 219, 108 Pac. 450, 29 L. R. A. n. s. 333, 348; Oil Co. v. Van Etten, 107 U. S. 325, 334, 1 Sup. Ct. 178; Bradley v. McDonald, 218 N. Y. 351, 388, 113 N. E. 340; 16 Cyc. 962.

It is not deemed necessary to further recite herein the testimony given on behalf of defendant which it is claimed required the submission of the issue raised by the counterclaim to be submitted to the jury. We have considered it and are convinced that the civil court was right and justified in dismissing the counterclaim for want of sufficient evidence.

Under the rule as stated in Mechanical A. Co. v. A. Kieckhefer E. Co. 164 Wis. 65, 159 N. W. 557; Keck v. Michigan Q. S. Co. 158 Wis. 500, 149 N. W. 208; Sawyer B. Co. v. Steiner, 158 Wis. 508, 149 N. W. 1071; Decker v. Beaver M. Co. 158 Wis. 471, 149 N. W. 209, that should govern the circuit court on such appeals from the civil court, the judgment of the civil court should be and now is affirmed.

By the Oourt. — The judgment of the circuit court is reversed, and the cause remanded with directions to affirm the judgment of the civil court.