Parke, Austin & Lipscomb, Inc. v. Sexauer

CourtUnited States State Supreme Court of Wisconsin
Citation235 N.W. 785,204 Wis. 415
Decision Date07 April 1931
PartiesPARKE, AUSTIN & LIPSCOMB, INC., v. SEXAUER.

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for La Crosse County; S. E. Smalley, Circuit Judge.

Action by Parke, Austin & Lipscomb, Inc., against Clarence B. Sexauer. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

The action was commenced on October 15, 1928, to recover the purchase price of books alleged to have been purchased by the defendant upon a written contract. From a judgment entered May 28, 1930, in favor of the plaintiff for the full purchase price, defendant appeals.

The complaint alleges that on the 11th day of November, 1927, defendant entered into a contract with the assignor of the plaintiff whereby defendant agreed to purchase one complete set of “Great Events of Famous Historians,” and to pay therefor the sum of $195.80, together with express charges. The only defense set up in the answer and involved in this appeal is that defendant agreed with the agent of the plaintiff's assignor that the contract signed by him should have no binding force and effect as a contract until defendant should have the opportunity to examine the books; that defendant kept the books a reasonable time and then returned them to the plaintiff's assignor. The case was tried before the court and a jury, and a special verdict was submitted. The verdict and answers of the jury are as follows:

“1. Was the name of Clarence B. Sexauer which appears on the instrument marked Exhibit 1 written thereon by the defendant? Answer: Yes.

2. If you answer question 1 ‘Yes,’ then did the defendant deliver Exhibit 1 to plaintiff's assignor with the intention that it should go into effect? Answer: Yes.

3. If you answer questions 1 and 2 ‘Yes' then did the defendant deliver Exhibit 1 to plaintiff's assignor conditionally and on the agreement that Exhibit 1 should not be binding until defendant had examined and approved the books? Answer: Yes.”

The court ordered judgment upon the verdict in favor of the plaintiff. No bill of exceptions was settled in this case.Lees & Bunge, of La Crosse, for appellant.

George H. Gordon and Law & Gordon, all of La Crosse, for respondent.

WICKHEM, J.

[1] In the absence of a bill of exceptions, this court is limited in its review to ascertaining whether the judgment is sustained by the pleadings and the findings. Town of Mt. Morris v. Hill, 152 Wis. 116, 139 N. W. 734;Wolfe v. Furman, 142 Wis. 94, 124 N. W. 1039;Ellis v. Frawley, 165 Wis. 381, 161 N. W. 364;Hoff v. Hackett, 148 Wis. 32, 134 N. W. 132.

It is suggested by the respondent that, since there is no bill of exceptions, and since there are no exhibits attached to the pleadings, the term “Exhibit 1” is unintelligible and that this court cannot know what Exhibit 1 was. Appellant contends that, since the special verdict refers to Exhibit 1, it may be treated as part of the verdict for the purposes of review. McDermott v. C., M. & St. P. Ry. Co., 91 Wis. 38, 64 N. W. 430. But whether this case is applicable or not, it is clear from the pleadings that Exhibit 1 can refer only to the contract between the parties. The pleadings in this case clearly present an issue as to conditional delivery, it being alleged in the answer that the contract in question was not intended to have any binding force as a contract until an opportunity was had to examine the books. The special verdict obviously represents an attempt to present this issue to...

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11 cases
  • Stelloh v. Liban
    • United States
    • United States State Supreme Court of Wisconsin
    • October 29, 1963
    ...by the pleadings and the findings or the verdict. Weyerhaeuser v. Earley (1898), 99 Wis. 445, 75 N.W. 80; Parke, Austin & Lipscomb, Inc. v. Sexauer (1931), 204 Wis. 415, 235 N.W. 785, or whether the findings support the judgment, St. Joseph's Hospital of Sisters of St. Francis v. Town of Wi......
  • Gray v. Wisconsin Tel. Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 1, 1966
    ...by the pleadings and the findings or the verdict. Weyerhaeuser v. Earley (1898), 99 Wis. 445, 75 N.W. 80; Parke, Austin & Lipscomb, Inc. v. Sexauer (1931), 204 Wis. 415, 235 N.W. 785, or whether the findings support the judgment, St. Joseph's Hospital of Sisters of St. Francis v. Town of Wi......
  • Christian v. City of New London
    • United States
    • United States State Supreme Court of Wisconsin
    • March 12, 1940
    ...271, 232 N.W. 525;Ellis v. Frawley, 165 Wis. 381, 161 N.W. 364;Hoff v. Hackett, 148 Wis. 32, 134 N. W. 132; and Parke, Austin & Lipscomb v. Sexauer, 204 Wis. 415, 235 N.W. 785. The answers by the jury to the questions submitted to them by the trial court are to the effect that the plaintiff......
  • Davis v. Davis
    • United States
    • United States State Supreme Court of Wisconsin
    • April 3, 1951
    ...court is limited to ascertaining whether the judgment is sustained by the pleadings and by the findings. Parke, Austin & Lipscomb, Inc., v. Sexauer, 1931, 204 Wis. 415, 235 N.W. 785; Edleman v. Kidd, 1885, 65 Wis. 18, 26 N.W. 116; McDermott v. Chicago, Milwaukee & St. Paul R. Co., 1895, 91 ......
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