Watter v. Glendenning
Watter v. Glendenning
Opinion of the Court
The finding of a jury will not be disturbed if there is any competent evidence to support it and it does not appear that the jury acted from prejudice or passion. It is not the duty of the jury to count the witnesses, but to weigh the evidence. Wausau Boom Co. v. Plumer, 49 Wis. 118. It is not clear that there was any decided preponderance of evidence either way upon the material question, namely, whether there was an agreement by which the plaintiffs took the machinery in question in satisfaction of their debt. We think there was sufficient evidence, if believed by the jury, to support their finding on this issue; and where, as in this case, the circuit court was satisfied with the verdict, we cannot interfere to set it aside,, unless-some rule of law has been violated, or there has been an abuse of discretion on the part of the court in denying the motion, or it is made manifest that the verdict was the result of prejudice or passion.
As to the agreement we have the testimony of two witnesses,— one of the defendants, Glendenning, and the plaintiffs’ agent. The former testified, in substance, that he and the plaintiffs’ agent talked of removing the machinery for the debt, and he (Glendenning) said he thought that he would consent to his taking it out if he would cancel the debt, and added that he would like a week’s time to consider of it, which the agent consented to grant; that before the week was up the agent went up there in defendants’ absence, and took the machine out and took it away, lie further testified that he told the agent if he would allow him enough to pay the debt he ivas perfectly willing he should take the machine out. That he meant to be understood as saying: “If he wanted to take the planer out and cancel the debt he could do it. ITe wanted security if the machine was left in, and he gave me a week to furnish the security. I said right there he could take the planer out if he would cancel the debt. I wanted the week to-
It was a fair question for the jury, upon the evidence, whether the defendants did not make the plaintiffs’ agent an offer to allow him to take the machine out of the mill and cancel the debt. If the jury believed this version of the case, the taking of the machine out of the mill and taking it away, three or four days afterwards, was an acceptance of the proposition; and the plaintiffs, having received and retained the machinery, were bound to cancel the notes. The proposition to give the defendants a week in which to give security, if any such was made, was for their benefit, but the plaintiffs were not bound by it. It is not for them now to say that their removal of the machinery ■was not an acceptance of the defendants’offer they had
The plaintiffs’ counsel argues that the finding of the jury as to the value of the machinery was the result of prejudice and not of fair deliberation, and that there was no evidence to support it, and that the same feeling extended to and affected the finding as to the agreement. If the agreement was proved, the finding on the question of value became wholly immaterial, and the verdict would have .been sufficient without it. It is true that the finding upon the question of value seems to be against the weight of evidence, but it is to be observed that the machine cost $1,150 when put into the mill, and it had been run only about one third of the time for a little less than one year, and was doing good work when taken out. One witness, who appeared to be familiar with it, testified in substance that an expenditure of $150 in repairs would make it as good as ever, and that he thought it was worth $G00 or $700. The condition of the machine was described, and the testimony of the several witnesses as to its value was opinion evidence, and the jury had a right to consider all the facts
For these reasons, we are of the opinion that there is no error in the judgment of the circuit court.
By the Court.— The judgment of the circuit court is affirmed.
Reference
- Full Case Name
- Watter and another v. Glendenning and another
- Status
- Published