87 Wis. 266 | Wis. | 1894
On the questions of extra work, the appellant makes no point upon this appeal. Error is assigned because the verdict of the jury does not cover all the issues in the case, and because the judgment is in part based upon the findings of the court. The statute declares that any issue of fact in such action shall, on demand of either party, be tried by a jury, whose verdict thereon shall be conclusive, as in other cases. R. S. sec. 3323. It appears in one part of the record that “ when the case was called for trial the defendant duly demanded that the issues of fact therein be tried by a jury.” There are also recitals in the findings to the effect that a jury was “ demanded by the plaintiff for the trial of certain issues of fact; ” that the court “ submitted to the jury to find certain issues of fact; ” that the jury “found a verdict covering all issues of fact which either party requested should be submitted to the jury, other issues being reserved and submitted to the court.” Under the statute cited, the court was only required to submit to the jury such issues of fact as were demanded by either party. Here, it appears that all issues of fact which were so requested were so submitted. Such, verdict is not to be regarded as defective merely because the court fails to submit questions not in issue or not material or not contro
The findings of the court, as well as the verdict of the jury, appear to be sustained by the evidence. What has been said disposes of several incidental questions discussed in the brief of counsel. We perceive no error in allowing the plaintiff to testify to the effect that, as soon as the defendant had prepared the stonework, foundations, and building mentioned in the contract, he went to work on the job with as many men as he could work to advantage, and so continued such work until the job was completed; that under the circumstances it was not practicable to complete the job any sooner than it was completed. The witness was an expert, and he testified as such. On cross-examination he testified to the effect that he thought the woodwork of the mill was out of plumb, and that the brick veneering which he constructed under the contract was accordingly out of plumb from a half to three quarters of an inch, and might be an inch; that nevertheless it was a good job under
Exception is taken to numerous remarks of the trial judge in his rulings upon the admission of testimony during the course of the trial. Probably, some of these expressions might better have been omitted. But it is to be remembered that the trial judge must necessarily have a very large discretion in such matters. It is not every statement or direction made by him in the presence of the jury that constitutes an instruction or charge to the jury, within the meaning of the statutes. Gilchrist v. Brande, 58 Wis. 191-195. It does not appear that such remarks affected the substantial rights of the appellant, or tended to its injury or prejudice, and hence there can be no reversal on such ground. Ibid.; R. S. sec. 2829.
Exception is taken because the court charged the jury that: “ There is no evidence here to sustain the proposition, from the mouths of witnesses, that the veneered work is not substantial in character; that it will not perform the purpose for which it was intended,— but the claim is that it was imperfect, in that it does not observe the true line laterally, and not laid plumb as to its height up and down. You will determine as to that from the evidence and as you are satisfied therefrom whether the more imperfect manner in which it is alleged this work was done would deprive the work of its character of being substantial and substantially done in the manner set forth in the contract, in all
¥e find no error affecting the substantial rights of the defendant in the record.
By the Comí.— The judgment of the circuit court is affirmed.