Cram v. Bach

• Decision Date: 26 June 1957
• Citation: 83 N.W.2d 877,1 Wis.2d 378
• Parties: Harold R. CRAM, Respondent, v. Amil C. BACH, Appellant.
• Court: Wisconsin Supreme Court

Page 877

83 N.W.2d 877

1 Wis.2d 378

Harold R. CRAM, Respondent, v. Amil C. BACH, Appellant.

Supreme Court of Wisconsin.

June 26, 1957.

This appeal is from said judgment.

Johns, Roraff, Pappas & Flaherty, La Crosse, for appellant.

Hale, Skemp, Hanson & Schnurrer, La Crosse, for respondent.

STEINLE, Justice.

The defendant, Amil C. Bach, contends that the trial court erred with respect to certain of its instructions of the jury; that the jury's finding of duress is not sustained by the evidence; and that the jury's finding that the plaintiff, Harold C. Cram, did not ratify the contract, is not sustained by the evidence. Upon the oral argument, counsel for the defendant contended that Judge Varnum exceeded his jurisdiction in reinstating the jury's verdict and granting interlocutory judgment thereon. For reason that we are obliged to determine that Judge Varnum was without power to adopt the jury's verdict and to grant judgment thereon, and that hence there must be a new trial, we shall not discuss the other questions raised, nor make determination of them.

This is an action in equity. In his prayer for relief the plaintiff, Harold R. Cram, demands (1) that the written contract of partnership entered between himself and the defendant Amil C. Bach on January 27, 1951, for the operation of retail meat and grocery markets in the city of La Crosse be declared null and void; (2) that the court determine the sum of money that will compensate the defendant for his fair share of the profits of the business since January 27, 1951, and that any excess payment heretofore paid or credited to him by the business be returned and repaid to the business; (3) that the partnership be adjudged dissolved; (4) that a receiver of the property, rights, assets and good will of the business be appointed with the usual power to dispose of the same, collect the debts to the partnership for the benefit of all parties entitled thereto, to pay all just debts and expenses, and the costs of this action; (5) that the surplus be divided between the parties hereto according to their respective rights, (6) for further and other relief as shall be just.

The trial of the action was commenced before Judge White who submitted the issues relating to duress and ratification to a jury. While a jury is ordinarily no part of the chancery system, the court having the power and duty to determine finally all questions of fact and law, in the absence of contrary provisions a court of equity may frame issues of fact and submit them to a jury. 30 C.J.S. Equity § 495, p. 892.

The verdict of a jury in an equity case is merely advisory. Magoon v. Reber, 1890, 76 Wis. 392, 394, 45 N.W. 112. See also 30 C.J.S. Equity § 510, p. 904.

Where issues of fact have been submitted to a jury in an equity case, the court should pass upon their findings, and either adopt them or submit the same issues to another jury, or itself determine them. It should then try any remaining issues and file its findings upon the whole case, and direct entry of the appropriate judgment. Stahl v. Gotzenberger, 1878, 45 Wis. 121.

In Annotation, 156 A.L.R. 1150, the author points out that:

'When a court, in an equity proceeding, submits to a jury an issue as to which neither party has a constitutional or statutory right to a jury trial, the resulting verdict of the jury is advisory only. The court which has submitted the issue remains responsible for the ultimate decision of fact as well as to law. If not satisfied that the jury's conclusion is sound, the court may set aside the verdict and order a new trial, or disregard it entirely and decide the facts on the evidence as though no submission had been made; or if satisfied that the verdict is not due to error, is fair and properly supported by evidence, the court may accord to it such weight as it appears to merit, approving and adopting it in whole or in part. As the submission of an issue is itself discretionary, the use to be made of the jury's conclusion upon it is likewise discretionary.'

Judge White made no findings with respect to the issues of duress and ratification. Were it to be held that he approved the jury's findings with respect to such issues when he denied the motions to either change the answers in the jury's verdict or...