Watters v. Glendenning

• Decision Date: 16 March 1894
• Citation: 58 N.W. 404,87 Wis. 250
• Parties: WATTERS ET AL. v. GLENDENNING ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 250

58 N.W. 404

WATTERS ET AL.

v.GLENDENNING ET AL.

Supreme Court of Wisconsin.

March 16, 1894.

Appeal from circuit court, Oneida county; C. V. Bardeen, Judge.

Action by D. A. Watters and another against E. J. Glendenning and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought to recover the amount of two promissory notes given by the defendants to the plaintiffs,--one for $287.50, and the other for $580.72,--less the sum of $50 paid June 4, 1892, and $400 paid June 22, 1892. The answer was that these notes were given as part payment for certain planing-mill machinery purchased by defendants of the plaintiffs, May 15, 1891, of the value of about $400, and for which, at the time, the defendants made a cash payment, and gave the notes in suit, with others, for the balance of the purchase price; that on or about June 15, 1892, the defendants not being able to make payments then due on the notes, the plaintiffs' agent asked defendants if he could take back such machinery, and they told said agent that if he would take such machinery, and cancel the indebtedness therefor, and deliver up the notes then outstanding, he could go and take it, but not otherwise; that without further agreement, and while the defendants were absent from home, said agent went to their mill, and took out said machinery, and took the same away, and the plaintiffs have ever since held it, and have not accounted or paid defendants therefor, and that it was worth $1,300 more than the amount remaining unpaid of the purchase price therefor. Upon trial before the court and jury, a special verdict was found, namely: (1) “That the plaintiffs' agent, W. E. Ottie, and the defendant E. J. Glendenning, agreed that the plaintiffs should take the machinery in question in satisfaction of their claim against the defendants for the purchase price thereof.” The uncontradicted evidence showed that the plaintiffs took the machinery out of the mill, and carried it away, while the defendants were absent from home. (2) “The value of the machinery taken by the plaintiffs at the time when taken was $875.” The plaintiffs moved to set aside the verdict, and for a new trial, on the ground that it was contrary to law and to the evidence, and was perverse; but the court denied the motion, and gave judgment in favor of the defendants for costs of the action, from which the plaintiffs appealed.Alban & Barnes, for appellants.

Miller & McCormick, for respondents.

PINNEY, J. (after stating the facts).

The finding of a jury will not be disturbed if there is any competent evidence to support it, and it does not appear that the jury acted from prejudice or passion. It is not the duty of the jury to count the witnesses, but to weigh the evidence. Boom Co. v. Plumer, 49 Wis. 118, 5 N. W. 53. It is not clear that there was any decided preponderance of evidence either way upon the material question, namely, whether there was an agreement by which the plaintiffs took the machinery in question in satisfaction of their debt. We think there was sufficient evidence, if believed by the jury, to support their finding on this issue; and where, as in this case, the circuit court was satisfied with the verdict, we cannot interfere to set it aside, unless some rule of law has been violated, or there has been an abuse of discretion on the part of the court in denying the motion, or it is made manifest that the verdict was the result of prejudice or passion. As to the agreement we have the testimony of two witnesses,--one of the defendants, Glendenning, and the plaintiffs' agent. The former testified, in substance, that he and the plaintiffs' agent talked of removing the machinery for the debt, and he (Glendenning) said he thought that he would consent to his taking it out if he would cancel the debt, and added that he would like a week's time to consider of it, which the agent consented to grant; that before the week was up the agent went up there in defendants' absence, and took...