Sailer v. Barnousky
| Decision Date | 18 March 1884 |
| Citation | 60 Wis. 169,18 N.W. 763 |
| Parties | SAILER v. BARNOUSKY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the circuit court, Door county.
This is an action to recover $20 loaned by the plaintiff to the defendant. The answer admits the borrowing of the money, but alleges repayment. Under the charge of the court, the jury found for the plaintiff. The court refused to set aside the verdict, and from the judgment entered thereon this appeal is brought.O. E. & Y. V. Dreutzer, for respondent, F. X. Sailer.
H. M. McNally, for appellant, Fred. Barnousky.
The parties lived some distance from each other. It was the theory of the defense that at the time of borrowing the money it was agreed between the plaintiff and defendant that the latter would repay the money by sending it to the plaintiff by a Mr. Kilgore, who ran a stage and carried the mail between the two places. The plaintiff testified, in effect, that at the time he loaned the money to the defendant the latter agreed to bring it back himself or send it by Mr. Kilgore in a few days, and that he was satisfied to have it sent by Mr. Kilgore so long as he got it. It appears from the undisputed testimony that a few days after borrowing the money the defendant gave to Kilgore the amount, with directions to deliver it to the plaintiff. Kilgore testified that he received the money as stated; that he took it to the plaintiff's saloon and paid it to one of two boys therein, apparently in charge. The plaintiff and each of his boys testified that Kilgore never paid the money to either of them. For want of exceptions to specific portions of the charge we are precluded from considering them. The defendant requested the court to instruct the jury that “if you find from the evidence that it was understood between the parties to this action that the money in question should be paid by the defendant to Mr. Kilgore, to be delivered by him to the plaintiff, and that the money was paid to Kilgore as agreed, then your verdict will be for the defendant.” The court refused to so instruct, and gave to the jury no equivalent instruction. There is no claim that the request was not made in time. If at the time of borrowing the money it was understood between the parties that the money in question should be paid by the defendant to Mr. Kilgore, to be delivered by him to the plaintiff, and the money was so paid to him as agreed, then, it seems to us, the defendant became discharged of all further...
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Hickey v. Rio Grande Western Ry. Co.
...the refusal of appropriate instructions upon request constitutes error. (2 Thompson on Trials, sec. 2347, and authorities cited; Sailor v. Barnowski, 60 Wis. 169; Campbell Campbell, 54 Wis. 90, 98; Wells v. Utah Construction Company, 27 Utah 524.) Rogers & Street and W. R. White for respond......
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Templeton v. Milwaukee Light, Heat & Traction Co.
...& T. Co., 126 Wis. 14, 104 N. W. 1003; L. & M. R. R. Co. v. Seeger, 4 Wis. 268;Campbell v. Dick, 80 Wis. 42, 49 N. W. 120;Sailer v. Barnousky, 60 Wis. 169, 18 N. W. 763;Borchardt v. Wausau Boom Co., 54 Wis. 107, 11 N. W. 440, 41 Am. Rep. 12. Among other references cited upon the part of the......
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Sambs v. City of Brookfield
...in time, and there is evidence to support it, it is error to refuse it unless an equivalent instruction is given. Sailer v. Barnousky (1884), 60 Wis. 169, 171, 18 N.W. 763. While the trial judge could have appropriately given the requested instruction, based on the defendant's evidence of f......
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Rosecky v. Tomaszewski
...of the rule of the statute, as is one who has paid directly to the mortgagee. The situation is like that involved in Sailer v. Barnousky, 60 Wis. 169, 18 N.W. 763, wherein it is held that if at the time money is borrowed it is agreed that payment shall be made to a third person, to be deliv......