89 Wis. 6 | Wis. | 1894
1. The finding of the jury that the services ■of the defendants -&ere rendered under the written contract consisted of a single point or proposition, and disposed of the substance of the issue in favor of the plaintiff, leaving it .as a mere matter of computation upon undisputed facts to ■ascertain for what amount judgment should be given in her favor. With this verdict remaining in force, judgment ■could not have been given for the defendants. Judgment non obstante veredicto is given where the defendants’ plea confesses the action and does not sufficiently avoid it. 2 Tidd Pr. 920. It will be given where the defendant obtains a verdict, and the defense put upon the record is not a legal defense to the action, in point of substance; but not unless the merits of the case are very clear. Grah. Pr. 647. But a defendant cannot move for judgment non obstante veredicto. Smith v. Smith, 4 Wend. 468; Schermerhorn v. Schermerhorn, 5 Wend. 513; Bellows v. Shannon, 2 Hill, 86.
2. The verdict of the jury is clearly supported by the evi-
3. The evidence which it is supposed supports the view that the written contract was rescinded and abandoned, because the plaintiff did not make the necessary advances for expenses and costs, after the parties had acted on it for more than three years, is found in certain letters which passed between the defendants and Mr. Sheridan, of Paola, Kan., the attorney and agent of the plaintiff where she resided, in the fall of 1887. The action in the meantime had been heard on demurrer in the circuit court and in this court on appeal. It had been removed to the United States circuit court, and remanded for want of jurisdiction, and a trial had been had, and verdict and judgment given for the plaintiff, and an appeal therefrom was pending in this court. It appears that the plaintiff remitted §75 to the defendants, February 5, 1887, for costs, etc. In October following the defendants sent her a bill for costs, amounting to $134.04, and asked for a remittance, and in November the defendants were informed that it was difficult for her to raise the money, and that she could not do it before the next summer. In De-
It is doubtful whether the provision in the contract in respect to the payment of disbursements and expenses can be regarded as a condition precedent, for the mere nonperformance of which the defendants might rescind the contract;
The defendants, during the three years of litigation before the dispute occurred in respect to the terms of employment, had advanced quite a considerable sum of money to meet the necessary expenses of carrying on the litigation. They appear to have done so because the plaintiff was unable to furnish the necessary means of the litigation, and in so doing paid out money for her use and benefit, and they had an undoubted right to retain these advances out of the moneys collected on the judgment. It must be held that they consented to the creation of the relation of debtor and creditor between them, and up to October 26,1889, waived any right to consider the contract rescinded or abandoned because of her failure to furnish the necessary funds. Looking to what occurred immediately after, we find that the defendants, so far from electing to withdraw from her service and to consider the contract at an end, insisted on the right to control the case and carry it on, unless reimbursed for fees and moneys advanced. With perfect knowledge that the plaintiff refused “ to throw aside the contract or change its terms,” •and being informed that she would be compelled very soon
Eor these reasons the finding of the circuit court must be set aside, and the judgment of the circuit court thereon reversed.
By íJie Oow't.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.