Sexton v. Goodrich

• Decision Date: 19 March 1907
• Parties: SEXTON ET AL. v. GOODRICH.
• Court: Wisconsin Supreme Court

131 Wis. 146

111 N.W. 206

SEXTON ET AL.

v.GOODRICH.

Supreme Court of Wisconsin.

March 19, 1907.

Appeal from Circuit Court, Milwaukee County; L. W. Halsey, Judge.

Action by Alonzo G. Sexton and others against A. Story Goodrich. Judgment for plaintiffs, and defendant appeals. Modified and affirmed.

Action for agreed 2 per cent. commission for effecting sale of two parcels of land by the plaintiffs at the employment of the defendant, one known as the “Twenty-Fourth street property” and the other as the “Grand avenue property.” The defenses were, first, as to both parcels, that defendant acted only as agent for the respective owners in employing plaintiffs and did not become liable; and, as to the Twenty-Fourth street property, a further defense that plaintiffs had agreed to accept in full payment of their commission all they could obtain above $1,000 for a certain other lot received in trade for the property sold. As to the Grand avenue property, a further defense was denial that plaintiffs sold or procured the sale of the property. A special verdict was taken finding that the Twenty-Fourth street property belonged to Nellie A. Goodrich, wife of defendant, and the Grand avenue property to Julia A. Teesdale, a relative of his; that defendant did not act and contract with the plaintiffs openly as the agent of either of said owners, nor did the plaintiffs know when they executed employment that the property was owned otherwise than by defendant. They also found, as to the Twenty-Fourth street property, that no agreement had been made to accept in satisfaction of their commissions all that they might realize over $1,000 for another lot, and, as to the Grand avenue property, they found that the sale to Uihlein Bros. was effected through the efforts of the plaintiffs, and that the amounts of their commissions so earned were, respectively, $110 for the Twenty-Fourth street property and $900 for the Grand avenue property. Defendant moved that the verdict be set aside and a new trial granted, for the reason that the answers to each of the disputed questions were “contrary to the preponderance of the evidence,” which motion was overruled, and judgment entered in favor of the plaintiffs upon the verdict, from which defendant appeals.Chas. D. Mann, for appellant.

Stover & Stover, for respondents.

DODGE, J. (after stating the facts).

The single assignment of error is the overruling of defendant's motion to set aside a verdict and grant a new trial because the answers are against the preponderance of the evidence. This discloses an unaccountable confusion in counsel as to the questions which will be considered in this court on appeal. If there is no fault with the verdict other than that the preponderance of the evidence has been ignored by the jury, and the trial court, upon motion for that purpose, has refused to disturb it, it is futile to bring the case here on appeal. This court will reverse a judgment based upon the verdict of a jury only when such verdict is wholly unsupported by credible evidence, or when some error of law has been committed. This policy has been declared so often that it ought not to be necessary to reiterate it. Peat v. Railway Co., 128 Wis. 86, 107 N. W. 355;Bazelon v. Lyon, 128 Wis. 337, 107 N. W. 337.

Counsel, however, did contend, at least upon the oral argument, that the findings of the jury had not even the support of any credible evidence, and were opposed to uncontradicted evidence. We have therefore gone at large into the evidence, and find that, with one exception, the answers in the special verdict have the support of at least some evidence which, after approval of the verdict by the trial court, we cannot say is incredible. The one exception is the answer to the eleventh question: “Was the sale to August Uihlein et al. of the property known as 619 Grand avenue, aforesaid, effected through the efforts of the plaintiffs? Answer: Yes.” The testimony upon which this answer must have rested is brief and, in the main, without dispute as to specific facts. Wherever there is conflict, we, of course, accept the testimony of the plaintiff Frey himself. He states that some time in September Mr. Goodrich first spoke to him about the Grand avenue property, and it was then listed on his book at a price of $52,000, commission 2 per cent. The terms of this...