Newton v. Whitney

• Decision Date: 14 October 1890
• Citation: 46 N.W. 882,77 Wis. 515
• Parties: NEWTON v. WHITNEY ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 515

46 N.W. 882

NEWTON

v.WHITNEY ET AL.

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, Monroe county.Bleekman, Tourtellotte & Bloomingdale, for appellant.

Morrow & Masters, for respondents.

ORTON, J.

On the 30th day of March, 1884, the appellant's assignor, Orin I. Newton, advanced to the respondents the sum of $625, to be used by them in part payment for the purchase by them of a printing press, and materials for use in their business, and the respondents agreed to repay the said advancement in printing work for the said Orin I. Newton, at the rate of $15 per month, until it was all repaid, with 10 per cent. interest thereon. The press was procured, and the respondents, for a time, did such printing work for said Newton, but, as the appellant claims, in such an unworkman-like manner as to have been an actual damage to the said Orin I. Newton, or the appellant, and worthless. The appellant, or his said assignor, therefore, rescinded and terminated said special agreement, and demanded of the respondents the repayment of said advancement in money, which being refused, the appellant, the assignee of said Orin I. Newton, has brought this suit for the recovery thereof.

It will be observed that the only question of fact in this statement was whether the respondents did such printing work in such an unworkman-like manner as to justify the appellant, or his assignor, in so rescinding such contract, and entitle him to recover in this action. The circuit court substantially instructed the jury that such was the main issue, and that, if they found for the appellant, they should deduct what had been paid by sufficient printing work before the rescission of the contract, and render their verdict for the residue of said advancement. The answer alleged that, on the 20th day of May, 1884, the copartnership between the respondents was dissolved, and that the defendant Barton W. Perry assumed the performance of said agreement with the assent of the said Orin I. Newton, and that the said Perry continued to do said printing in a satisfactory and workmanlike manner. This matter was entirely ignored in the instructions of the court to the jury, and the appellant failed to ask any instruction on that question. The learned counsel of the appellant now claims that he had the right to rescind said agreement, and demand the repayment of said advancement in money, because he had the right to the personal labor and skill in printing of both of the respondents, and particularly of the respondent Guy Whitney. That was a question the jury could not have considered, for the court instructed them that the only question for them to consider was whether the respondents did such printing in a proper and workman-like manner. Another matter in proof, and which is not referred to in the instructions of the court as having any bearing upon the issue, was concerning the taking away of the printing-press by the said Orin I. Newton, which prevented the respondents from doing such printing work under the contract, until it was reclaimed by them in an action of replevin. The court was not asked to instruct the jury upon such matter. This matter and the dissolution of the partnership of the respondents were probably ignored by the court in stating the issues to the jury, because of their immateriality. But whatever the reason may have been, if either party desired any further instructions, they should have been requested on the occurrence of such an omission. To except to the instructions on the ground that they did not embrace all the questions at issue is not...