Adams v. McKay
| Decision Date | 01 June 1885 |
| Parties | ADAMS v. MCKAY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Portage county.
Silverthorn, Hurley & Ryan, for respondent.
Raymond & Haseltine, for appellant.
We are unable to perceive how the defendant could have been prejudiced by allowing the witness Kyle to answer the question put to him whether the sleds remained outside nearly a week after they were finished before they were removed by the defendant. The question was objected to as leading. The witness, however, answered that the third and fourth sets remained out there nearly a week, and added that the first five sets remained out there nearly a month, before Knox took his three sets away. This evidence was not at all material to the issues being tried. By the original contract the plaintiff admits the five sets of sleds were to be completed, ready for delivery at his shop, by the first of December, 1880. His contention is that the sleds were finished the last of October, when the defendant inspected and accepted them and paid $150 on the contract; that afterwards, in November, he sold Knox three sets of the sleds, with the knowledge and consent of the defendant, upon an agreement that he would manufacture three other sets of like structure and material, in lieu of those sold Knox, and have them completed, ready for delivery, by the middle of December. The defendant denies that there was any extension of the time for completing the contract, and claims that the sleds were to be finished, ready for delivery, by the first of December. There is no pretense that the plaintiff had the sleds ready for delivery at that time. The question litigated, therefore, was whether the defendant had agreed that the time for finishing the sleds should be extended. On that question the evidence of the witness was not important. The plaintiff was bound to show a valid excuse for failing to perform his contract as originally made. It is true, one question litigated was, what damage, if any, the defendant had sustained by reason of the delay in finishing the sleds by the first of December. But the question put to the witness had but little bearing upon that issue, and it was evidently not intended to refer to it. We therefore think the defendant was not prejudiced by the court overruling the objection to the question.
The other errors assigned for a reversal of the judgment relate to an exception to a portion of the charge; also to one taken to the refusal of the court to give an instruction, or instructions, asked on the part of the defendant. That portion of the charge specifically excepted to is the following: where the court told the jury that “the plaintiff is entitled to recover the amount you find due him for the delivery of these sleds and other articles, with interest from the time they were delivered.” It is said this charge took from the jury every question...
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Gehl v. Milwaukee Produce Co.
...cases in this court: Jenks v. State, 17 Wis. 665; Firmeis v. State, supra; Thrasher v. Postel, 79 Wis. 503, 48 N. W. 600;Adams v. McKay, 63 Wis. 404, 23 N. W. 575;Stuckey v. Fritsche, 77 Wis. 329, 46 N. W. 59. In Kerslake v. McInnis, 113 Wis. 659, 89 N. W. 895, it was said that the exceptio......
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Klotz v. Milwaukee Elec. Ry. & Light Co.
...after trial, and such exception is not sufficient. Jenks v. State, 17 Wis. 665;Firmeis v. State, 61 Wis. 140, 20 N. W. 663;Adams v. McKay, 63 Wis. 404, 23 N. W. 575. It follows that we cannot review the order directing a verdict. The judgment of the court below is ...
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Little v. Town of Iron River
...to charge must be taken on the trial, and usually before the jury retires. Firmeis v. State, 61 Wis. 140, 20 N. W. 663;Adams v. McKay, 63 Wis. 404, 23 N. W. 575;Stuckey v. Fritsche, 77 Wis. 329, 46 N. W. 59;Thrasher v. Postel, 79 Wis. 503, 48 N. W. 600. The judgment of the circuit court is ...
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Stuckey v. Fritsche
...276, 16 N. W. Rep. 603;Collins v. Shannon, 67 Wis. 441, 30 N. W. Rep. 730;Firmeis v. State, 61 Wis. 140, 20 N. W. Rep. 663;Adams v. McKay, 63 Wis. 404-408, 23 N. W. Rep. 573; Gardner v. Gooch, 48 Me. 487. We think it very clear that the defendant waived any right to insist upon the trial ju......