5 Wis. 62 | Wis. | 1856
By the Court,
The points insisted upon in this court by the counsel for the plaintiffs in error, are:—
1st. That the Circuit Court erred in submitting the' question to the jury to determine what the contract was between the parties; and
2d. That a proper, reasonable and sound construction of the contract shows that the plaintiffs are entitled to recover-for the amount of the salt sued for, notwithstanding what is contained in the letter of November 21, 1851, and -that the court should thus have instructed the jury.
We think it hardly admits'bf discussion, that the construction of this contract was a matter belonging exclusively to the court, and not to the jury. The court should have?looked at the letters containing the contract, determined what it was, and the rights and liabilities of the jjarties under it. In the instructions asked for below by the counsel for the plaintiffs, and refused, the court was called upon to give a certain construction to the contract, which it declined doing, but charged the jury, in substance, that it was their duty to look at all the correspondence of the parties, and all the proof iii the case, and determine what the contract realty was in all its parts; that this was a question wholly for their consideration. In this, evidently, the court erred, and there must be a new trial, unless it appears that the plaintiffs were not injured by the charge, and that the jury gave the contract the correct construction, the same that the court must have given had it put a construction upon it, and were right in their finding. And this leads to the second point in the case, to wit: what was really the contract between the parties ?
When this case was before us, at a previous term, we stated that it appeared to be the ordinary case when a merchant in one place orders goods of another elsewhere; that the letters of Higby and the telegraphic dispatch, .constituted an order for 1,500 barrels of salt; and that when the plaintiffs in pursuance
It is insisted by the counsel for the defendant in error, that the plaintiffs had been paid, by a draft upon the insurance company. But how can that proposition be maintained in view of the proof in the case ? In their letter of May 26th, 1852, introduced by the defendant, the plaintiffs say that the company had failed, and that they took up the draft after having discounted it. This shows very clearly that they had realized nothing upon this draft,’ and warrants the presumption that it was in their possession when the suit was brought. Yet the draft belonged to the defendant, and should have been produced at the trial. The defendant is entitled to the money upon it from the insurance company. We do not find that upon the trial any particular objection was made by the defendant because the draft was not produced, and, therefore, we do not think it would be right to charge the plaintiffs with it, at this stage of the cause, merely on the ground of this omission.
The judgment of the Circuit Court must be reversed and a new trial ordered.