Krueger v. Lake Trading Co. , 150 Wis. 569 ( 1912 )

ViN je, J.

It is claimed the verdict is not supported by the evidence. Plaintiff testified that it was agreed the place of the delivery of the ties should be on the railroad track. The defendant’s agent who bought them testified the agreement was that they should be delivered loaded on cars at Rib Lake. There was no other direct evidence as to the terms of the contract with reference to the place of delivery. A careful perusal of the evidence shows there are as persuasive attendant circumstances corroborating plaintiff’s claim as there are those that lend color to the claim of the defendant. The verdict of the jury, therefore, cannot be set aside as against, or not supported by, the evidence. It was peculiarly within the province of tbe jury to determine whose evidence was tbe more credible.

On tbe subject of custom tbe cburt instructed tbe jury as follows,:

“In regard to tbe evidence tending to prove custom, if you find that said custom existed, and that the plaintiff knew such custom, then you may consider that as acircumstance tending to prove that the parties contracted witb reference to this alleged custom as to tbe delivery of said ties, if there were no express agreement."

Defendant contends that this’ instruction was erroneous, inasmuch as the custom, being a general one, would be presumed to have entered into tbe contract, and that one may be bound -thereby although ignorant of it, unless tbe other party be shown to have knowledge of bis ignorance. Under tbe un-contradicted testimony in this case tbe question of place of delivery was provided for in tbe contract between tbe parties. It was either on tbe railroad track, as plaintiff testified, or at Eib Lake on board cars, as defendant claimed. That being so, evidence as to custom was erroneously received and should not have been considered by tbe jury, nor should any instruction relative thereto have been given. Kosloski v. Kelly, 122 Wis. 665, 100 N. W. 1037.

It is doubtful if tbe instruction of tbe court can be said to have submitted tbe question of custom to tbe jury, inasmuch as they were told they should consider tbe subject of custom only if there was no express agreement as to place of delivery. Since both parties assert that there was an express agreement relative thereto it is difficult to see what is left of tbe instruction. But if it be deemed to have been considered by tbe jury, it was, to tbe extent that it was considered, beneficial and not harmful to tbe defendant. Its claim was, through such instruction, given some support when it was entitled to none.

By the Court. — Judgment affirmed.