Twentieth Century Co. v. Quilling

• Decision Date: 20 October 1908
• Citation: 136 Wis. 481,117 N.W. 1007
• Court: Wisconsin Supreme Court
• Parties: TWENTIETH CENTURY CO. v. QUILLING.

136 Wis. 481

117 N.W. 1007

TWENTIETH CENTURY CO.

v.QUILLING.

Supreme Court of Wisconsin.

Oct. 20, 1908.

Appeal from Circuit Court, Dunn County; E. W. Helms, Judge.

Action by the Twentieth Century Company against Herbert W. Quilling. Judgment for defendant, and plaintiff appeals. Affirmed.

Action to recover on a promissory note. The defense was as tendered in the proposed amended answer, fully set forth in the report on the first appeal to this court. 130 Wis. 318, 110 N. W. 174. For a full statement of the issues presented reference is here made to such report, it being understood that such proposed amended answer was the answer in fact at the second trial, resulting in the judgment appealed from.

The first trial was by the court pursuant to a stipulation that the cause should be placed upon the court calendar and tried at the convenience of the court upon notice by it to the attorneys for the respective parties.

The judge who presided at the first trial did not preside at the second. On the latter occasion, the cause being on the jury calendar and having been reached for trial, plaintiff's counsel moved on the aforesaid stipulation for a transfer of the cause to the court calendar and a trial without a jury. The motion was denied, due exception to the ruling being preserved. Evidence was introduced bearing on the questions passed upon by the jury. A special verdict was rendered containing these findings in substance: The purpose of both parties to the contract was to defraud others. The real arrangement between them was a mutual scheme to make money by selling nominal territorial rights to others each of whom should, by the sale contract, become a party to the scheme agreeing to sell similar rights to others, each of whom should likewise sell to still others and so on to the extent that purchasers could be found who would become like parties. Such arrangement was the real consideration for the note in suit. Neither party supposed the right to sell the device in Gates county was of any real commercial value, or that defendant would make any effort in that regard. Such right was not of any real commercial value. The written contract did not include the entire agreement. It was agreed when the contract was made and note given that the right to sell the patented article in Gates county during the life of the patent was of no value. The agent who represented the defendant in the transaction was authorized to make the agreement. Such agent had authority additional to that indicated in the writing between him and plaintiff.

After the rendition of the verdict a motion was made on behalf of plaintiff for judgment thereon and a motion was made on behalf of defendant to change the answers which were adverse to it, to answers in its favor and for judgment on the corrected verdict for the amount claimed in the complaint. Subsequently, the court made and filed full findings of fact, substantially the same as would have been required in case of the trial having been had without a jury, deniedplaintiff's motion and granted that of defendant. Judgment was rendered accordingly dismissing the cause with costs.

Daniel H. Grady, for appellant.

Bundy & Varnum, for respondent.

MARSHALL, J. (after stating the facts as above).

Whether, technically, the court erred in refusing to try the case without a jury, and we do not intend to suggest that it did so err, such error was not harmful. The defendant was entitled as matter of right to a jury trial unless he waived it. The court, seemingly uncertain as to whether he ruled right or not in denying the motion to try the case in accordance with the stipulation, after taking the verdict made full findings of fact, adding its decision to that of the jury, the two being in harmony. In such circumstances we are unable to see that plaintiff was in any wise prejudiced by the ruling complained of. The general trend of authority is that an appellate court will not interfere with the action of a trial court in setting aside or disregarding a stipulation in respect to the conduct of a trial, in the absence of satisfactory affirmative proof that some right of appellant was prejudiced thereby. 20 Ency. P. & P. 670, and cases cited. That is the effect of Brown v. Cohn, 88 Wis. 627, 60 N. W. 826.

The law of this case, respecting whether respondent was entitled to judgment in the event of his establishing without harmful error in the course of the trial the facts alleged in the answer, was settled upon the first appeal. Some questions in that field are presented in the brief of appellant's counsel, but we shall not refer thereto otherwise than by this recognition of them and the well known rule that they are settled by the former decision. Case v. Hoffman, 100 Wis. 314, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945, 44 L. R. A. 728;Collins v. City of Janesville, 111 Wis. 348, 87 N. W. 241, 1087;Zimmer v. Fox River Valley Electric Ry. Co., 123 Wis. 643-645, 101 N. W. 1099;Horn v. La Crosse Box Co., 131 Wis. 383-388, 111 N. W. 522.

While some fault is found with the special verdict no complaint goes to the extent of challenging its sufficiency as not covering all controverted issues of fact. Such being the case the fact, if there be such as claimed, that some questions included in the verdict are immaterial and others do not, each by itself, cover a distinct issue raised by the pleadings, is nonprejudicial. It were better to always prepare the special verdict in strict conformity to the statute as the court has construed it. But if in any case the verdict in some reasonable form covers all material facts put in issue by the pleadings and controverted in the evidence, so that each question and the answer thereto informs the court as to the truth of the controversy involved therein, especially in case of there being no objection to the form till after the jury are discharged, another rule of the statutes--the one commanding a disregard of nonprejudicial errors--must prevail. No objection to the form of the verdict here was raised by appellant's counsel upon the trial except one not mentioned upon this appeal. The fact that counsel examined the form prepared by the court and made the one objection thereto directed to one question, keeping silent in respect to it otherwise, may well have been understood by the court as consenting to such form, except as thus criticised. Nothing further seems necessary on this branch of the case.

Much complaint is made that the verdict, at some material points, is not supported by any credible evidence. The record has been carefully studied in that respect. We shall not follow in this opinion the intricacies of counsel's argument as to what is essential to a contract embodying the fatal elements set forth in the answer. Many questions discussed in counsel's brief in respect to such matters, bearing on the greater question that the verdict is not supported by the evidence, are beside the case, as we view it. Did the plaintiff and defendant make the contract alleged in the answer? That is the vital question and it was resolved by the jury in respondent's favor by a distinct finding on the subject.

True, appellant acted in the matter through an agent, but there is no question of ratification necessarily involved since the jury found that the agent had original authority to act as he did. Moreover, we agree with the contention of respondent's counsel, that the act of appellant in keeping the fruits of the alleged and found illegal transaction and pursuing respondent to realize thereon after being fully informed of the nature thereof, as it seems was the case, was a ratification of the agent's conduct as a matter of law. McDermott v. Jackson, 97 Wis. 64-76, 72 N. W. 375;Fraser v. Ætna Life Ins. Co., 114 Wis. 510, 90 N. W. 476. In the last case cited it was stated as a principle too well understood to justify discussing the same in a legal opinion, that a person cannot have the benefit of a transaction and repudiate the responsibilities thereof. If he insists upon the one he subjects himself to the other as regards civil remedies. Standard works on the law of principal and agent uniformly so state the rule to be, as witness the following:

“The principal cannot avail himself of the benefits of the act of a person assuming to represent him in a transaction and repudiate its obligations. Having, with full knowledge of all the material facts, ratified, either expressly or impliedly, the act assumed to be done in his behalf, he thenceforward stands responsible for the whole of it to the full extent to which the agent assumed to act, and he must abide by it whether the act be a contract or a tort and whether it results to his advantage or detriment.” Mechem, Agency, § 167.

Without further discussion on this branch of the case we will close by stating this as the conclusion to which we have arrived: There is ample evidence tending to establish every material fact covered by the verdict. To incumber this opinion by a recital of the evidence in detail, or even by stating the same in a general way with an analysis thereof, pointing out how the jury might reasonably have viewed the same, would serve no purpose except to support the statement that the record has been carefully examined as a basis for the conclusion. We must assume that no such support is necessary.

Many complaints are made of rulings on evidence. We will refer in detail to those which we regard as most significant.

Evidence was permitted on the part of defendant as to there being devices similar in character to the one in question with which the latter, at the time the contract was made, would upon its being placed on the market, come in competition. It is suggested that the evidence should not have been allowed in the...