Rochester Mach. Tool Works v. Weiss

• Citation: 108 Wis. 545,84 N.W. 866
• Parties: ROCHESTER MACHINE TOOL WORKS v. WEISS.
• Decision Date: 08 January 1901
• Court: United States State Supreme Court of Wisconsin

108 Wis. 545

84 N.W. 866

ROCHESTER MACHINE TOOL WORKS

v.WEISS.

Supreme Court of Wisconsin.

Jan. 8, 1901.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by the Rochester Machine Tool Works against Fred W. Weiss. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.

This action is upon an account stated. It appears that prior to September 21, 1895, the defendant had had dealings with plaintiff in the purchase and sale of machinery, and that there was an open and unliquidated account between them. A few days prior to the date last mentioned the plaintiff sent its agent to Milwaukee to make a settlement. The parties got together, and spent about four days in looking over their accounts, and at the close the defendant signed a statement in writing, at the foot of the account, in which he admitted that he was indebted to plaintiff in the sum of $1,333.74. The answer set up false representations by plaintiff's agent and duress. After hearing the evidence, the trial court directed a verdict for the plaintiff for $1,540.46, upon which verdict judgment was duly entered. A motion for a new trial on the ground of error and newly-discovered evidence was denied. Defendant appeals.Dalberg & Becher, for appellant.

Moe & Hansen, for respondent.

BARDEEN, J.

We are asked to reverse this judgment on the following grounds: (1) Because the court erred in its rulings as to the admission of evidence; (2) because the court erred in directing a verdict for plaintiff; (3) because the court erred in refusing a new trial on the ground of newly-discovered evidence; (4) because the damages are excessive.

We will consider these questions in the order stated:

1. In considering this assignment of error, we will emulate the brevity of appellant's counsel. They have given us no reasons why they believe the court erred in rejecting evidence, but have contented themselves by citing the page of the case where the ruling was made, and say that it was erroneous. The rulings referred to show that defendant was attempting to surcharge the account in suit without having laid any proper foundation therefor. The rulings of the trial court were eminently proper. The letters that were sought to be introduced are not printed in the case or referred to in the brief. Counsel ought not to expect the court to hunt through a bill of exceptions to ascertain the basis of their complaints.

2. The one really substantial question in the case is whether the court was justified in directing a verdict for the plaintiff. The action was upon an account stated. The defense was duress. This court has so recently and so exhaustively discussed the question of what constitutes duress that it is unnecessary to do more than refer to the cases: Wolff v. Bluhm, 95 Wis. 257, 70 N. W. 73;Mack v. Prang, 104 Wis. 1, 79 N. W. 770;Galusha v. Sherman, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417. The true rule, as stated in the last case cited, is as follows: “Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purposes of obtaining such contract, as to be bereft of the quality of mind essential to the making of a contract, and was the contract thereby obtained?” What constitutes duress is a matter of law. Whether duress existed in a particular transaction is a question of fact for the jury. When it is perfectly evident from the testimony adduced that there is no foundation for a claim of duress, the court may so decide, and take the...