Plankinton v. Gorman

• Decision Date: 19 June 1896
• Citation: 67 N.W. 1128,93 Wis. 560
• Parties: PLANKINTON v. GORMAN.
• Court: Wisconsin Supreme Court

93 Wis. 560

67 N.W. 1128

PLANKINTON

v.GORMAN.

Supreme Court of Wisconsin.

June 19, 1896.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by William Plankinton, as assignee of the Plankinton Bank, against Matt H. Bauer and Thomas Gorman, on a promissory note. Judgment for plaintiff, and defendant Gorman appeals. Reversed.

Defendant Matt H. Bauer, on the 1st day of May, 1893, made his promissory note for $1,000, payable 100 days after date, to the order of defendant Thomas Gorman, and caused the same to be indorsed by the J. Obermann Brewing Company, and thereafter, for value, delivered the same to Gorman. Gorman thereafter indorsed the note to H. J. Killilea, and he indorsed the same to the Plankinton Bank. Thereafter, and before the note became due, the brewing company made an assignment for the benefit of creditors. At the maturity of the note it was duly protested, so as to fix the liability of the indorsers. Thereafter the bank filed a claim for the amount due on the note in the assignment proceedings of the brewing company. Thereafter, and when the assignee had sufficient assets in his hands to pay the note, an agreement was made between plaintiff, as assignee of the bank for the benefit of creditors, the brewing company, and its assignee, without the knowledge of Gorman, whereby plaintiff, by a written instrument under seal, released the brewing company and its assignee from such claim. Evidence was offered on the trial, and received against defendant Gorman's objection, to explain such instrument, and show that it was not a release in fact of the brewing company, but a mere consent to a reassignment of the property held by the assignee, so that the company might resume business and ultimately pay the note. The evidence tended to show that the arrangement was made with a view of giving the brewing company an indefinite extension of time for the payment of the note, and that the real consideration for the release was the reassignment of the property by the assignee to the brewing company, and its resumption of business. At the close of the evidence plaintiff moved the court to direct a verdict in his favor, and defendant Gorman made a like motion to direct a verdict in his favor. The court granted plaintiff's motion and denied defendant's motion. Judgment was entered in favor of plaintiff, and defendant appealed.M. R. Killilea and Austin & Feher, for appellant.

Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

MARSHALL, J. (after stating the facts).

There was no motion for a new trial before judgment. Therefore the question of whether the verdict is sustained by the evidence is not before us. Kirch v. Davies, 55 Wis. 287, 11 N. W. 689. It is argued on the part of respondent that, for want of a motion for a new trial before judgment, this court cannot review the rulings of the trial court in directing the verdict for plaintiff. Such is not the law. A motion for a new trial is only necessary to preserve for review errors committed by the jury. Errors committed by the court are reviewable without such motion. Improperly directing a verdict is such an error, which, if properly excepted to, and preserved in the bill of exceptions, can be reviewed on appeal from the judgment. The facts are uncontroverted that plaintiff in form executed and delivered an instrument reciting as a fact that the claim on the note against the brewing company had been fully paid, satisfied, and discharged, and in consideration thereof plaintiff released and discharged such company, its assignee, and the assets held by him from such claim; that there were sufficient funds or assets in the hands of such assignee to pay the claim; that plaintiff had an interest in or lien upon such assets to the amount of such...