22 Wis. 61 | Wis. | 1867
At the trial, the defendant .objected to any
2. Does the second defense in the answer set up facts sufficient to bar the action ? Taken in connection with the contract set out in the complaint, it contains, in substance, allegations that Ashford imported the.watches and clock in question without paying the duties thereon, and afterwards sold and transferred them to "Wermuth; and that the defend-. ant, after 'such sale, to settle two suits, one in favor of Ash-ford and both against Wermuth, executed and delivered the contract; that, after its execution and before the time for the delivery of the property, it was seized by the United States, and thereafter duly condemned and sold for the violation of the revenue, laws by Ashford in importing it. If Wermuth had agreed to return, or to sell and deliver, for a valuable and sufficient consideration, the property to Ash-ford, and had failed to perform his contract because the
3. The court instructed the jury that, “ as there is no conflict in the testimony regarding the delivery of the property by the defendant, and as I am of opinion that the testimony does not amount in law to a delivery, and fails to show a performance- of his contract by the defendant in respect to the watches and clock, I therefore direct and instruct the jury to return a verdict for the plaintiff for the sum of five hundred and ninety dollars, and interest from June 10th, 1863.” Is this instruction correct ? The testimony respecting the delivery is that of the defendant. After stating that he had no notice of the assignment of the contract set out in the complaint'till the 4th day of June, 1863, and that he and Ashford, on the 3d day of June, went to the
By the Court. — Judgment reversed, and a venire de novo awarded.
Rehearing denied.