Cayouette v. Emil T. Raddant Brewing Co.

• Decision Date: 10 November 1908
• Parties: CAYOUETTE v. EMIL T. RADDANT BREWING CO.
• Court: Wisconsin Supreme Court

136 Wis. 634

118 N.W. 204

CAYOUETTE

v.EMIL T. RADDANT BREWING CO.

Supreme Court of Wisconsin.

Nov. 10, 1908.

Appeal from Circuit Court, Shawano County; John Goodland, Judge.

Action by Samuel Cayouette as administrator of the estate of Joseph Cayouette, deceased, against the Emil T. Raddant Brewing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff was running a saloon under an agreement with the defendant by the terms of which the plaintiff agreed to pay for the fixtures advanced by defendant in installments of $5 per month and also pay $15 a month on rent of the premises. The claim of the plaintiff in this action as set up in the complaint is to the effect that, after he had performed the agreement to the extent of paying $265 on the fixtures, the defendant, in violation of its agreement, dispossessed plaintiff, converted the fixtures, and sold them to another, and refused to perform or permit plaintiff to perform on his part; that plaintiff duly tendered performance, which was refused, and demanded return of his money, which was likewise refused. The issues were tried before the court and a jury, and the jury found in favor of plaintiff. Judgment was rendered on the verdict from which this appeal was taken.Dreier & Winter and P. J. Winter, for appellant.

Eberlein & Eberlein, for respondent.

KERWIN, J. (after stating the facts as above).

The appellant assigns the following errors: (1) That the court erred in not granting the motion of the defendant for a new trial on the ground that the verdict was contrary to the evidence; (2) that the court erred in receiving the deposition of one Joseph Cayouette for the reason that no sufficient notice of the taking of said deposition had been served upon the defendant or his attorney; (3) that the court erred in denying the defendant's motion to dismiss the action, for the reason that the case was tried upon the theory of a valid contract, and that such contract was not to be executed within one year, and was therefore void.

The first assignment of error cannot be considered. We cannot review the evidence in this case, since there is nothing in the bill of exceptions going to show that any motion for a new trial was made. The sufficiency of the evidence is the only question arising under the first assignment of error; hence this error is not available to defendant. On the assignment of error that the court erred in receiving the deposition there is nothing in ...