Haueter v. Marty , 150 Wis. 490 ( 1912 )

WiNsnow, O. J.

Tbe case seems to have been fully and fairly tried and tbe answers of tbe jury to tbe questions of tbe special verdict are all sustained by sufficient evidence. It may be said also tbat tbe special verdict satisfactorily covers all of tbe matters in issue between tbe parties, hence it will not be necessary to notice further tbe appellants’ claim tbat certain questions proposed by them should have been made part of tbe special verdict.

Tbe assignments of error which are deemed necessary to treat will be briefly considered.

1. By cb. 381, Laws of 1911, it is provided, in substance, tbat all persons buying cheese in quantities of fifty pounds or more in this state shall, unless otherwise agreed by express contract, cause tbe same to be weighed at tbe time of delivery to tbe purchaser or to tbe common carrier for shipment, and pay for tbe same at tbe weight so ascertained, and at tbe price agreed on at tbe time, except for such cheese, as may be found of inferior quality by a test made at or before tbe time of delivery.

This law does not seem to have been relied on by tbe plaintiff, but during a long cross-examination by defendants’ counsel tbe plaintiff was asked whether a certain letter which be bad received from Mr. Mwriy, dated July 6th, was not tbe same letter which be bad mentioned as dated July 7th. Tbe witness answered tbat it was possible tbat be might have got tbat letter in tbe evening, and tbe court then suggested tbat tbe.matter bad been gone into fully and tbat tbe cross-examination was being extended to great length on matters which under tbe law might not be material. Exception was taken to this remark by defendants, and tbe trial judge went on to say tbat if tbe testimony was offered for, the purpose of showing an express contract it would be received, but not otherwise, because be deemed tbat under cb. 381 nothing but an express agreement could be shown. No exception was taken to this remark. A number of further questions were asked and answered, but no further rulings made, nor does the statute seem to have been referred to again. So far as we can discover, no testimony was ruled out because of the existence of the statute. The ease was tried and the special verdict framed substantially as if the statute did not exist, and under the verdict, irrespective of the statute, the plaintiff is entitled to recover. The statement of the court that he deemed the statute valid was academic rather than practical. It had no perceptible effect either on the testimony or the verdict. Hence we do not reach the question whether there was error in the ruling nor the question whether the statute is unconstitutional.

2. It was a matter of dispute between the parties whether the plaintiff knew that the cheese was being purchased for shipment to the Chicago market, and the defendant attempted to offer in evidence a memorandum made by him in a note book at the time, in which it was stated that the cheese was to be shipped to Chicago. The plaintiff had already testified that, while he saw Mr. Marty write something in his pocketbook, he did not know what it was. The utmost that Mr. Marty could testify to was, that he made the memorandum of the purchase and that the plaintiff stood beside him “and saw me when I put it down.” There is no evidence, therefore, showing that the plaintiff knew what the memorandum contained at the time. It was a mere self-serving memorandum made by the defendant in his own interest and not brought to the knowledge of the plaintiff at the time. Such memorandums do not constitute substantive evidence of the facts as against the other party to the transaction.

A check which the defendants had tendered to the plaintiff, and which the plaintiff had returned because not sufficient in amount, was offered and properly rejected because the fact that tbe check was sent and returned was conceded by tbe plaintiff, and tbe mere form of tbe check became immaterial.

8. Tbe trial court instructed tbe jury as follows on tbe question of tbe burden of proof:

“Tbe burden of proof as to questions 1, 4, 6, 7, 8, and 9 is on tbe affirmative; by that is meant that you should not answer them in tbe affirmative unless you are satisfied in your mind by a preponderance of tbe evidence.that they should be so answered. Tbe burden of proof as to question number 2 is on tbe negative; that is, you should not answer it in tbe negative unless you are satisfied in your own mind by a preponderance of the evidence that it should be so answered.”

It is objected that this instruction is confusing and misleading. It seems clear that there is no sufficient exception to this instruction, for at best tbe exception is only a general one to tbe entire charge, much of which is unexceptionable; but, conceding that tbe question is properly raised, we see no error or confusion in tbe instruction as given.

4. Tbe defendant requested tbe giving of eighteen instructions, all of which were refused, and error as claimed on this ruling. There are two sufficient answers to this contention: (1) tbe instructions were general in their nature and bad no proper application to tbe questions of tbe special verdict, and (2) tbe exception taken was an omnibus exception to tbe refusal to give tbe entire eighteen instructions, many of which were so palpably inapplicable to tbe questions of tbe special verdict as to leave no room for a claim that they should have been given. Citation of authorities showing that such an exception is not available seems unnecessary, but a recent case covering tbe point may properly be referred to. Flannigan v. Stauss, 131 Wis. 94, 111 N. W. 216.

By the Gowrt. — Judgment affirmed.