Murphey v. Weil

61 N.W. 315, 89 Wis. 146, 1894 Wisc. LEXIS 261

Opinion

NbwjiaN, J.

The eleventh finding of the special verdict is that the terms, “ Patent applied for on thermostat and automatic machine,” in the contract, were used with reference to the automatic machine involved in the Butz interference proceedings. This was the clock-work device for automatic adjustment of the thermostat and automatic machine at predetermined times. So far as the question being now considered goes, the plaintiff’s right to.recover depends on the further fact that that application was allowed in substance. If it was, the condition on. which the right of the defendant to have his purchase money returned depends has not arisen. If it has been allowed the plaintiff is, other conditions not preventing, entitled to recover the balance of the purchase money. If this application has not been allowed in substance, the defendant is entitled to have the purchase money, to the amount of $12,500, returned. The balance of purchase money unpaid is less than that sum. The law will not require the defendant to pay money which, if he had paid, he would be entitled to have returned. The twelfth finding is that all the patents applied for, and on which applications were pending at the date of the contract, for thermostat and automatic machines, were allowed. If both findings are true and consistent with the other findings of the verdict, then, clearly, the plaintiff is entitled to recover, for then all conditions prerequisite are fulfilled. Then the particular patent applied for, on whose disallowance in substance the right of the defendant to the return of the money depended, is included among the patents which have been allowed. And it is clear that between these two findings is no repugnance. As a logical consequence, the plaintiff’s right to recover-follows from those two findings. But it is undisputed in the case that the patent applied for, which was involved in the Butz interference proceedings, ah though once formally allowed, was never issued by the patent office, because of its interference with the Butz patent. Although allowed in form, it was “ disallowed in substance.” So the twelfth finding is clearly inconsistent with the undisputed fact relating to the allowance of this particular patent. If this undisputed fact is, in legal contemplation, a part of the special verdict, then it. will be true that the findings of the special verdict are inconsistent with each other. Then the order setting the verdict aside and for a new trial is right, on the very ground on which the trial court rested it.

A special verdict must find all the facts essential to a recovery, and nothing can be supplied by way of intendment. This is the rule. 2 Thomp. Trials, § 2651, and cases cited in notes; Event v. Walworth Co. Bank, 13 Wis. 419; Cotzhausen v. Simon, 47 Wis. 103. The rule is satisfied if all the facts essential to a recovery, which are controverted by evidence upon the trial, are speciahy found in the verdict. So the formal verdict may be sufficient, although it does not find specially facts which, although put in issue by the pleadings, are yet not controverted on the trial, or are established by the undisputed evidence. Stringham v. Cook, 75 Wis. 589, 594; Montreal R. L. Co. v. Mihills, 80 Wis. 540, 551; Hart v. West Side R. Co. 86 Wis. 483, 489. No doubt the trial court, in passing on the sufficiency of the special verdict, must treat material facts so established by the undisputed evidence in the same manner and to the same effect as if they were formally incorporated into the verdict. Or it may formally incorporate them into the verdict by amendment. 2 Thomp. Trials, § 2656. The difference is of form merely. In either ease, facts so established by the undisputed evidence go to support or defeat the verdict or the judgment founded on it, whether they are formally incorporated into the verdict or not. Eor such purpose they are, in effect, a part of the verdict, whether formaEy incorporated in it or not. Eor every purpose of review they are equivalent to a special finding of the fact so undisputed in the case. This was, no doubt, the thought of the trial judge. The twelfth finding is inconsistent with this undisputed fact in the case. The finding is true, except as to this one application. As to that it is inconsistent with the fact established by the undisputed evidence. The repugnance is very material. It relates to the very matter upon which the case turns, as determined by this special verdict.

Since the special verdict was so defective as that it should be set aside, it could not well be error to refuse judgment upon it to either party.

By the Court. — The three orders of the superior court of Milwaukee county, appealed from, are each affirmed.