W. H. Shenners Co. v. Delzer

173 N.W. 209, 169 Wis. 507, 1919 Wisc. LEXIS 181

• Court: Wisconsin Supreme Court
• Decided: June 25, 1919
• Status: Published

Opinion

Vinje, J.

The case was submitted by both parties without oral argument. Appellant assigns a number of errors that are not argued in his brief. Generally only those argued will be considered. My Laundry Co. v. Schmeling, 129 Wis. 597, 109 N. W. 540; Sherwood v. Hulett, 134 Wis. 561, 114 N.W. 1111.

The gist of the defense was fraud in securing the written contract, and it is contended that the witness for plaintiff who testified to the making of the contract and that defendant read it before he signed is not worthy of belief. The jury evidently did believe him and they were triers of the fact. We cannot say that' their finding in favor of plaintiff is not based upon competent credible evidence.

Since the general finding in favor of plaintiff negatives fraud and must be sustained, and since the court instructed the jury that in the absence of fraud the defendant must be held to have accepted the plaintiff’s offer, the argument that the jury intended to give the plaintiff only a liberal allowance for its services and disbursements in procuring an abstract and nothing for commission fails. The jury could not properly ignore the terms of a valid contract between the parties. How the mistake in the verdict occurred we do not know and it is idle to speculate upon the matter. But since there was no conflict in the evidence upon the subject of damages, placing the cost of the abstract at $21, the court properly corrected the amount thereof to conform to the proof. Schweitzer v. Connor, 57 Wis. 177, 14 N. W. 922; Schweickhart v. Stuewe, 75 Wis. 157 (43 N. W. 722) and cases cited on page 160.

By the Court. — Judgment affirmed.