*1 479 Koepke vs. Throm, Company, Sand & Gravel Appellant,
Respondent.* 8, January 1952. December * costs, denied, on March 1952. rehearing Motion *2 there was brief Arthur DeBardel- by
For the appellant counsel, DeBardeleben & of eben, Mahoney and attorney, Falls, Arthur oral by Park and DeBardeleben. argument all of a brief John there was M. Whitmer by For the respondent Benton, Bosser, Becker, Falls, and Parnell attorney, of Park counsel, and oral argument & Appleton Fulton Mr. David L. Fulton. Mr. Whitmer and contends that the testimony Plaintiff offered by Gehl, J. and was not cleaned restored to that his land him uncontradicted and could not undisputed, be being that, therefore, there jury, disregarded offered He finding. proof evidence of alfalfa been cultivation for production land had under it was left covered defendant’s operation; hay prior that considerable of top rock gravel; part of the had been rocks out leaving sticking soil removed size which that a rock of considerable covered ground; pile field, left of the his had been at one end some of timber $3,000 re-cover the land with soil cost that to top or more. is met by nineteen been Beil who is a farmer and for years
one the land in area assessor. testified that most of town He that of the is rocky including plaintiff, at a value of from and had assessed *3 $25 three in acre; he the farm two or times each that had seen trial, to and that the the year prior during year, the question seen it twice. With to respect precise had we have deal he stated: to there because the “This I went back twice first time year I at it look to me. went back a it did not right I looked if a harrowed it time I man had second and figured up it have a fair off crop down he would got hay seeded it could I if it was harrowed be used for it. ... figured have it har- ... If it were mine I would farm land. rowed, to raise over this tried had worked spring a on it.” crop not consider defendant’s evi- are to quantum
We to dence; our function is determine whether there is only familiar to the verdict. This credible evidence any conclude that citation authorities. We rule requires witness, Beil, not, suffices. He did true, state the that in land had present it is testify condition. But that was not de- restored to good farming the contract to restore it fendant’s obligation; testified, It is true that he condition.” also “farming to in answer to the whether he question considered that it was that to make it useful it would have to be harrowed and seeded. That was not defendant’s obli- take We notice of the gation. may judicial fact that even the best of farm land the upon soil must be harrowed or and seeded down to plowed produce that those crop, are operations required periodically.
witness, Beil, the verdict. supports witness, defendant’s
Against objection,
assessor,
the town
was
to
that the
permitted
testify
land had been assessed at
from
acre and a real-estate dealer
per
$20
$25
per-
mitted to
that the
testify
land when cultivated would be
worth about
acre. Plaintiff
contends that since
measure of
proper
damages
determined
terms of
contract,
the cost of
this
restoring
was error.
If it was error it was not prejudicial.
Upon
jury’s finding
action,
had no cause of
was not
entitled
and he
any
could not have been
damages,
prejudiced
because
an error which
have tended
might
to reduce the
amount of his
had the
recovery
found in
jury
his favor.
Sterr,
v.
Toepfer
156 Wis.
No definition of judicial the term “farming condition” attention, has been called to our nor have we been able an to find one. It is term used in a ordinary conventional sense in a area people residing and familiar character the of farm land. It quality is doubtful that
483 which a definition the term make more might meaning devised, the as the clear to could be court urges jury have done. If found it should have should possible therefor, a do. He made which he failed to cannot be request complain. Kelley. 265, heard Lehner v. 215 Wis. N. 634.W.
Defendant has to review the of the trial moved action court it- costs. The verdict returned on denying general 16, 22, 1950, November 1950. On November plaintiff served 1950, 27, on November filed notice motion and for an motions order aside and in the verdict the alter- setting for a native new trial. His motions were denied and that of 10, defendant on granted 1951. judgment January Judg- 29, ment was entered on 1951. It denies January defendant Stats., 270.31, costs. Sec. authorizes the clerk of court under certain enter circumstances to judgment upon the receiving verdict. Sec. 270.66 within provides sixty after days on verdict clerk is enter authorized to judgment order, without an within after an “or sixty order to days enter judgment filed” successful tax costs. party may
Plaintiff’s
motion for
new trial
determination
required
an
which,
order for
from
judgment,
appears
above,
29,
was made on
1951. The motion
January
operated
as a
until
stay
of and
proceedings
disposed
270.66, Stats.,
application
sec.
provisions
10,
terms of
which defendant had until March
to tax
costs. Milwaukee Masons &
v. Niezerowski,
Builders’ Asso.
166;
Lemma,
95 Wis.
70 N.
Dresser
W.
v.
Wis.
387,
By modified therein Judgment by providing Court.— ánd, modified, that defendant be awarded costs as so affirmed. By terms of the Currie, (dissenting). written J. lease agreement defendant agreed upon completion *5 under the to “clean restore
its agreement operations been condition” which had plaintiff’s to land farming any in defendant its used by operations. on this
In addition to testimony plaintiff point in also testified summarized the majority opinion that he been to farm on the machinery had able operate acres in a six-foot mower three sickle question including a tractor. It is that in its con- obvious present operated defendant, dition, as left such cannot be equipment on the land. operated “restore to
A reasonable phrase interpretation be that condition” would seem to defendant was farming in to back substantially land plaintiff’s place it in far defendant so same condition was in before occupied The is concerned. as its suitability farming purposes seems to majority opinion give significance employ- in of the defendant ment of the word “restore” the covenant in is at issue case. witness, Beil, in which is quoted not aby jury would finding majority opinion, three acres of land that the defendant had placed condition, so far as their in the same suit- substantially back concerned, were in they for farming ability purposes In substance to defendant’s prior operations. occupancy on this issue was that considered all that Beil testified to land in its have harrowed and seeded this possible done, that, if been a fair this had condition present would have resulted. His hay highly crop his not that in testify at best. He did opinion speculative the same the land condition produce good present of alfalfa as it defendant’s occu- had crop produced prior kind of farm could be machinery nor that the same pancy used in it that safely previously able to use this land. on
I cannot with the conclusion agree majority opinion that the admission into evidence over the objection of plain- tiff’s counsel of that the testimony, value of original plaintiff’s land before defendant’s acre, was occupancy $20 was not The prejudicial. admission of such irrelevant on the issue of entirely plaintiff’s damages, conceivable basis for it. only' admitting Apparently was defendant’s that in no event theory be held liable in excess of the damages value original of plaintiff’s but the leasing no such limit agreement placed on defendant’s if it liability failed to restore land to condi- tion. The rule of damages applicable ordinary personal does not because here property apply we have contract to real estate. relating
The admission of such improper testimony could scarcely fail to be but anything prejudicial. Under the leasing agree- ment the defendant had to the paid plaintiff two hundred dollars rental for one season’s occupancy. jury, upon hearing testimony three acres were only originally dollars, worth from dollars to sixty ninety might very readily have concluded therefrom that plaintiff sustained no damage, even defendant had though entirely failed to perform its covenant to restore the land to farming and as a result thereof have returned the verdict general they did in favor of defendant.
I would reverse the judgment and remand with directions that a trial new be had. ' I am authorized to state that Mr. Broadfoot Justice in this joins dissent.