MaRShalx., J.
Upon the first appeal'in this case (104 Wis. 120) one of the questions presented for decision was, Was it incumbent on defendant, when called upon by plaintiff’s agent, September 9, 1895, and notified of its acceptance of the guaranty, to do more than merely say to the agent, in-substance, that the paper was signed on condition that an additional guarantor would be obtained before delivery thereof to the guarantee ? That is, Was it necessary, at that, time, for the defendant to expressly notify the agent that he-would insist upon the condition that an additional guarantor be obtained before the letter of guaranty should take effect as to him, in order to prevent a waiver of his right to insist, upon such condition, thereafter, to defeat liability thereon ?’ That was decided in the negative. The decision was expressed in such plain language that no room was left for a mistake in regard to the subject upon a new trial, if reasonable attention were paid to the opinion of the court. The language of such opinion was as follows: “ The fact that the agent notified defendant that plaintiff would extend credit, to Ilolbek did not call for any protestation from him that he would not be. bound by the letter of guaranty. When knowledge came to plaintiff, if it did so come, that the letter of guaranty had been wrongfully delivered, it had no right, to ignore the fact. It proceeded thereunder at its peril, and unless defendant is guilty of some act that would amount, to an estoppel, is without remedy.” Notwithstanding such decision, on the new trial, upon substantially the same evidence as that produced on the first trial, the learned circuit [375]*375judge, at the request of counsel for plaintiff, instructed the jury as indicated in the statement of facts, that if defendant signed the letter of guaranty and was thereafter notified of its acceptance by plaintiff, it thereupon became a binding contract of guaranty according to its terms; that if defendant intended to insist upon the condition on which he signed! the paper, if there was such a condition, it was his duty to notify the plaintiff that he would not be responsible unless another signature was obtained to the paper. That was repeated and made so significant that the jury, looking alone to. the propositions given to them at the request of plaintiff’s counsel, were not.left free to come to any other conclusion but that express notification by defendant to plaintiff’s agent, of his intention to insist upon the conditional delivery of the .paper, was essential to save him from liability thereon.
True, the court in the eighth instruction, requested by plaintiff’s counsel, in form left it to the jury to say whether the statement defendant testified he made to plaintiff’s agent was sufficient notice that he did not intend to be bound by the paper as signed; but if it was proper to submit that question to the jury at all, they were not left free to answer it from the evidence, having been previously instructed, in effect, that express notification by defendant to the agent was necessary, that an additional signature to the letter of guaranty must be obtained in order to give effect to his signature; and there was no evidence of any such notice. True it was said on the former appeal that if defendant notified the plaintiff’s agent that the letter of guaranty was conditionally delivered, and such was the fact, plaintiff had no right to treat it as a binding contract unless defendant waived the condition by his conduct,— that is, did or said something, indicating that he did not intend to stand upon the conditional delivery, upon which plaintiff relied. What was there said respecting a waiver by defendant of the condition upon which he claimed to have signed the letter of [376]*376guaranty, was said, not because it was then thought there was anything in the record upon which a waiver could be based, but because it was supposed there might be evidence on that line on a second trial. The decision that the notice defendant said he gave, as to the circumstances of his signing and delivering the guaranty, sufficiently brought them to the attention of the plaintiff to be binding upon it, and that such situation could not be changed in plaintiff’s favor except by proof of circumstances sufficient in law to estop the defendant from denying his liability, gave no warrant for submitting to the jury on the second trial the question of whether, admitting defendant’s testimony to be true as to what he said, it was sufficient to bring to the agent’s attention the fact of the conditional delivery. The court should have followed the decision of this court by instructing the ju^r that if they believed from the evidence that the conversation occurred between the defendant and plaintiff’s agent, as testified to by the former, they should render a verdict in defendant’s favor, unless they believed from the evidence that he indicated to such agent that he would waive the condition, and plaintiff relied thereon. The mere fact that the agent was permitted to take the bond awray without protest, after the conversation mentioned, is of no significance, because that was consistent with defendant’s attitude that he was willing to be boipnd if an additional signature was obtained. Neither was the fact, if it be a fact, that the defendant called attention to the provision in the bond enabling him to withdraw therefrom if dissatisfied, and that he told the agent that he thought it would not be necessary for him to withdraw as he had faith in Holbek’s business ability; or the fact, if it be a fact, that the agent thereafter frequently called on defendant, and they talked about how Holbek was getting on in his .business, of any special significance. Neither one nor all of such circumstances were sufficient to establish a waiver of defendant’s [377]*377right to insist upon the effect of his notification to the plaintiff’s agent of the conditional delivery of the letter of guaranty. They do not indicate that defendant expected that goods would be sold on the faith of his signature to the letter of guaranty till another guarantor should be obtained. The burden of probf to establish the fact of waiver was upon the plaintiff, and without some clear, definite evidence tending that way, the finding should have been made in appellant’s favor by the court.
What has been said renders it unnecessary to discuss the general instructions given to the jury.
It is argued that because the law, as laid down in the former opinion, was correctly given to the jury, by instructions requested by appellant’s counsel, the errors discussed were thereby corrected. Counsel cite Middleton v. Jerdee, 73 Wis. 41, and Annas v. M. & N. R. Co. 67 Wis. 63. Those cases are of a class that hold that, where there is a mistake made in giving the law to the jury, so fully thereafter corrected as to leave no reasonable ground to say that they have been misled to the prejudice of the appellant, or where an instruction upon a material point is susceptible of two constructions, one a correct statement of the law and the other not, but taking the charge as a whole there is no reasonable ground to say that the jury may have adopted and applied the latter, the error cannot be taken advantage of to reverse the judgment. They have no relation to such cases as this where the whole or some essential part of the controversy to be determined by the jury was covered by erroneous instructions requested by one party ajid then again covered by correct instructions requested by the opposite party; or cases where conflicting instructions are given on material points, leading to uncertainty as to what rules of law were applied to the case by the jury.
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MaRShalx., J.
Upon the first appeal'in this case (104 Wis. 120) one of the questions presented for decision was, Was it incumbent on defendant, when called upon by plaintiff’s agent, September 9, 1895, and notified of its acceptance of the guaranty, to do more than merely say to the agent, in-substance, that the paper was signed on condition that an additional guarantor would be obtained before delivery thereof to the guarantee ? That is, Was it necessary, at that, time, for the defendant to expressly notify the agent that he-would insist upon the condition that an additional guarantor be obtained before the letter of guaranty should take effect as to him, in order to prevent a waiver of his right to insist, upon such condition, thereafter, to defeat liability thereon ?’ That was decided in the negative. The decision was expressed in such plain language that no room was left for a mistake in regard to the subject upon a new trial, if reasonable attention were paid to the opinion of the court. The language of such opinion was as follows: “ The fact that the agent notified defendant that plaintiff would extend credit, to Ilolbek did not call for any protestation from him that he would not be. bound by the letter of guaranty. When knowledge came to plaintiff, if it did so come, that the letter of guaranty had been wrongfully delivered, it had no right, to ignore the fact. It proceeded thereunder at its peril, and unless defendant is guilty of some act that would amount, to an estoppel, is without remedy.” Notwithstanding such decision, on the new trial, upon substantially the same evidence as that produced on the first trial, the learned circuit [375]*375judge, at the request of counsel for plaintiff, instructed the jury as indicated in the statement of facts, that if defendant signed the letter of guaranty and was thereafter notified of its acceptance by plaintiff, it thereupon became a binding contract of guaranty according to its terms; that if defendant intended to insist upon the condition on which he signed! the paper, if there was such a condition, it was his duty to notify the plaintiff that he would not be responsible unless another signature was obtained to the paper. That was repeated and made so significant that the jury, looking alone to. the propositions given to them at the request of plaintiff’s counsel, were not.left free to come to any other conclusion but that express notification by defendant to plaintiff’s agent, of his intention to insist upon the conditional delivery of the .paper, was essential to save him from liability thereon.
True, the court in the eighth instruction, requested by plaintiff’s counsel, in form left it to the jury to say whether the statement defendant testified he made to plaintiff’s agent was sufficient notice that he did not intend to be bound by the paper as signed; but if it was proper to submit that question to the jury at all, they were not left free to answer it from the evidence, having been previously instructed, in effect, that express notification by defendant to the agent was necessary, that an additional signature to the letter of guaranty must be obtained in order to give effect to his signature; and there was no evidence of any such notice. True it was said on the former appeal that if defendant notified the plaintiff’s agent that the letter of guaranty was conditionally delivered, and such was the fact, plaintiff had no right to treat it as a binding contract unless defendant waived the condition by his conduct,— that is, did or said something, indicating that he did not intend to stand upon the conditional delivery, upon which plaintiff relied. What was there said respecting a waiver by defendant of the condition upon which he claimed to have signed the letter of [376]*376guaranty, was said, not because it was then thought there was anything in the record upon which a waiver could be based, but because it was supposed there might be evidence on that line on a second trial. The decision that the notice defendant said he gave, as to the circumstances of his signing and delivering the guaranty, sufficiently brought them to the attention of the plaintiff to be binding upon it, and that such situation could not be changed in plaintiff’s favor except by proof of circumstances sufficient in law to estop the defendant from denying his liability, gave no warrant for submitting to the jury on the second trial the question of whether, admitting defendant’s testimony to be true as to what he said, it was sufficient to bring to the agent’s attention the fact of the conditional delivery. The court should have followed the decision of this court by instructing the ju^r that if they believed from the evidence that the conversation occurred between the defendant and plaintiff’s agent, as testified to by the former, they should render a verdict in defendant’s favor, unless they believed from the evidence that he indicated to such agent that he would waive the condition, and plaintiff relied thereon. The mere fact that the agent was permitted to take the bond awray without protest, after the conversation mentioned, is of no significance, because that was consistent with defendant’s attitude that he was willing to be boipnd if an additional signature was obtained. Neither was the fact, if it be a fact, that the defendant called attention to the provision in the bond enabling him to withdraw therefrom if dissatisfied, and that he told the agent that he thought it would not be necessary for him to withdraw as he had faith in Holbek’s business ability; or the fact, if it be a fact, that the agent thereafter frequently called on defendant, and they talked about how Holbek was getting on in his .business, of any special significance. Neither one nor all of such circumstances were sufficient to establish a waiver of defendant’s [377]*377right to insist upon the effect of his notification to the plaintiff’s agent of the conditional delivery of the letter of guaranty. They do not indicate that defendant expected that goods would be sold on the faith of his signature to the letter of guaranty till another guarantor should be obtained. The burden of probf to establish the fact of waiver was upon the plaintiff, and without some clear, definite evidence tending that way, the finding should have been made in appellant’s favor by the court.
What has been said renders it unnecessary to discuss the general instructions given to the jury.
It is argued that because the law, as laid down in the former opinion, was correctly given to the jury, by instructions requested by appellant’s counsel, the errors discussed were thereby corrected. Counsel cite Middleton v. Jerdee, 73 Wis. 41, and Annas v. M. & N. R. Co. 67 Wis. 63. Those cases are of a class that hold that, where there is a mistake made in giving the law to the jury, so fully thereafter corrected as to leave no reasonable ground to say that they have been misled to the prejudice of the appellant, or where an instruction upon a material point is susceptible of two constructions, one a correct statement of the law and the other not, but taking the charge as a whole there is no reasonable ground to say that the jury may have adopted and applied the latter, the error cannot be taken advantage of to reverse the judgment. They have no relation to such cases as this where the whole or some essential part of the controversy to be determined by the jury was covered by erroneous instructions requested by one party ajid then again covered by correct instructions requested by the opposite party; or cases where conflicting instructions are given on material points, leading to uncertainty as to what rules of law were applied to the case by the jury. ' In such a situation the losing party is generally entitled to a reversal of the judgment against [378]*378him, if proper proceedings be taken for a review of the error Imhoff v. C. & M. R. Co. 20 Wis. 344; Ward v. Henry, 19 Wis. 76; Little v. Superior R. T. R. Co. 88 Wis. 402.
Errors are very liable to occur where the practice is followed of giving to the juiy a number of propositions containing the law as claimed by the attorney on one side of the controversy and that is followed by a number of propositions submitted by opposite counsel containing the law as. claimed by him, and general instructions are also submitted. It is a safer course for the trial judge to study the requests, submitted with sufficient care to enable him to embody such as are correct in the general instructions, and to reject the rest. That course enables the court to submit to the jury the law point by point, in an orderly way, and the one-best calculated to preserve harmony between the several subjects treated, and not confuse the jury as to the law on-one point by reiterations of a principle in different language,, not easily comprehended by a layman to be identical in meaning.
Error is assigned because the court received in evidence-letters that passed between Holbek and plaintiff prior to-the acceptance by plaintiff of the guaranty, September 9,. 1895, relating to a change in such guaranty from two to-one thousand dollars, and so restricted the effect of such evidence as to exclude the letters so far as they were proof of such change. The evidence on the second, as on the first, trial shows that all negotiations and all arrangements regarding a change in the guaranty took place before it became effective, if it ever did, by notice to the defendant of plaintiff’s acceptance; that before such acceptance it was agreed between Holbek and plaintiff that the guaranty should stand as written; and that defendant was not a party in any way to, and had no knowledge of, the communications between plaintiff and Holbek. On that state [379]*379of the case it was decided on the former appeal that what occurred in regard to a change of the guaranty was immaterial. That rules the assignment of error under consideration adverse to appellant.
Error is assigned because the court permitted the verdict of $1,000 to stand, there being no evidence to warrant a finding, except either of no cause of action, or of substantially the full amount claimed by plaintiff, indicating that the cause was not fairly considered by the jury, and that the verdict was purposely or recklessly made regardless of the evidence. It needs no argument or citation of authority to justify the conclusion that such a verdict ought not and cannot be permitted to stand. It should have been set aside by the trial court without hesitation. This is not a case where the jury was called upon to assess mere unliquidated damages. If plaintiff was entitled to a verdict, the amount of it was susceptible of being determined with mathematical accuracy. A verdict showing that the evidence, and the law as given by the court, were wholly disregarded by the jury as to an essential fact of the case, leaves it doubtful whether they considered and decided, upon the evidence, as to any question upon which defendant’s liability depended. Juries have no power to guess away or arbitrate the rights of parties. Their duty is strictly limited to finding the facts from the evidence and applying the law thereto as given to them by the court. Litigants are entitled to an intelligent,, fair consideration by them of questions submitted, and where it is clear that prejudicial misconduct has taken place, as in this case, there is no more room for the exercise of judicial discretion in disposing of the motion to vacate the verdict and grant a new trial, than there is for a jury to dispose of the rights of parties regardless of the evidence. Waufle v. McLellan, 51 Wis. 484.
By the Court. — The judgment is reversed, and the cause remanded for a new trial.