Kaley v. Van Ostrand
| Decision Date | 28 January 1908 |
| Citation | 114 N.W. 817,134 Wis. 443 |
| Parties | KALEY v. VAN OSTRAND. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Price County; John K. Parish, Judge.
Action by Ambrose Kaley against Dewitt Van Ostrand. From a judgment for plaintiff, defendant appeals. Affirmed.
Among other references cited upon the part of the appellant were the following: Dells v. Stollenwerk, 78 Wis. 339, 47 N. W. 431;Clark v. Slaughter, 129 Wis. 642, 109 N. W. 556;Thompson v. Brennan, 104 Wis. 564, 80 N. W. 947;Adams v. Snow, 106 Wis. 152, 81 N. W. 983. Among other references cited upon the part of the respondent were the following: Matthews v. Baraboo, 39 Wis. 674;Bowman v. Van Kuren, 29 Wis. 209, 9 Am. Rep. 554;Russell v. Loomis, 43 Wis. 545;Gardinier v. Kellogg, 14 Wis. 605;Forcy v. Leonard, 63 Wis. 353, 24 N. W. 78;Stewart v. Mather, 32 Wis. 344;Orton v. Scofield, 61 Wis. 382, 21 N. W. 261.Ray J. Haggerty, for appellant.
T. M. Holland, for respondent.
This action was begun before a justice of the peace; the defendant appealed from the judgment against him to the circuit court, where the cause was tried upon the oral pleadings presented before the justice, and where the jury rendered a verdict against the defendant for $50, upon which the judgment now appealed from was entered.
The appellant assigns error in denying his motion for the direction of a verdict in his favor at the close of the plaintiff's testimony, and before the defendant had rested his case. The motion was properly denied because prematurely made. Appellant's counsel may have been misled by the report of Adams v. Snow, 106 Wis. 152, 81 N. W. 983, and Portance v. Lehigh Valley Coal Co., 101 Wis. 574, 77 N. W. 875, 70 Am. St. Rep. 932. In each of these cases the defendant had offered testimony and rested his case before the motion was made, and the court corrected its statement that a nonsuit was granted by making the proper direction of a verdict. Briefs and Cases, vols. 592, 631. It is not proper to direct a verdict before both parties rest. The judgment entered upon a directed verdict is ordinarily conclusive upon the parties in a subsequent litigation involving the same questions. A judgment entered upon motion of the defendant after hearing the plaintiff's case, and before the defendant has offered any evidence and rested his case, is not ordinarily a bar to another action.
The appellant next assigns error because the circuit court overruled his motion to direct a verdict at the close of all the testimony and after both parties rested. This motion is based upon the claim that there was no evidence from which a jury could find a verdict in favor of the plaintiff, giving such evidence the most favorable construction to which it was entitled in order to sustain a verdict. The evidence tended to show that one Kundinger was the owner of an 80-acre tract of land and the appellant was the owner of a 40-acre tract of land. Kundinger asked the plaintiff to see the defendant, and try to make an arrangement to exchange the 40-acre tract for the 80-acre tract, saying to plaintiff: “If you can make anything out of this, you can have that for your commission.” Plaintiff met defendant, and proposed the exchange, provided the defendant would pay $50 to boot. Defendant said to plaintiff: “I suppose you get the $50;” and plaintiff answered, “Yes.” Defendant answered: Plaintiff took defendant out to show him the 80-acre tract, and before starting said to him: “This will cost you $50 will be my commission.” Defendant seemed to be satisfied with that, for he looked the land over, and afterward said to the plaintiff that plaintiff had made or earned $50. The plaintiff paid for the abstract and the horse and vehicle in which he went out with defendant to see the land. When the deeds were made out, the scrivener, Mr. Aschenbrenner, asked whether he would keep the papers until the plaintiff got his money and the plaintiff said: It does not appear, however, that defendant heard this last statement. Defendant testified that the deal was made through the plaintiff; that is, the plaintiff brought...
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Oesterreich v. Claas
...inferences which might reasonably be drawn therefrom, tends to establish the liability of the party making the motion. Kaley v. Van Ostrand, 134 Wis. 443, 114 N.W. 817;Gessner v. Roeming, 135 Wis. 535, 116 N.W. 171.” [5] It is first contended by Claas that the Electrical Code is not applica......
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...effect of passing out the check under the circumstances to an inexperienced woman was at least a matter for the jury. Kaley v. Van Ostrand, 134 Wis. 443, 114 N. W. 817. If the cashier intended that the plaintiff should understand that she was making a contract with the bank and the plaintif......
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...offered any evidence. Such a judgment is usually not on the merits and is not ordinarily a bar to another action. Kaley v. Van Ostrand (1908), 134 Wis. 443, 445, 114 N.W. 817. In like manner, a peremptory nonsuit is not on the merits and is not a bar to another action for the same cause. Ga......
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