Bixby v. Wilkinson

Cornell, J. In submitting this case to the jury, the court, without objection from either party, directed them to return a special verdict in answer to three separate questions propounded to them, stating that it would direct such general verdict as might be authorized by their answers to such questions. An examination of the settled case clearly shows that these questions embraced every material matter of fact which was in issue under the pleadings, concerning which there was any conflict of evidence, or any dispute or controversy at the trial. It was tried upon this theory, both by the court and the parties. Neither party requested a finding by the jury upon any other matter than those covered by the special questions submitted, nor was it sugges'ed by either party that either of the questions thus submitted to be passed upon was not a proper matter for the determination of the jury under the pleadings. The specific findings returned in answer to the questions thus submitted, taken in connection with the uncontradicted evidence and the admission of the defendant’s counsel on the trial as to all other matters, clearly show that the plaintiff was entitled to a general verdict in his favor, and it would not have been error for the court to have directed- such general verdict upon the coming in of the special verdict. The omission to do so was a mere matter of form, affecting no substantial right; for the judgment which was rendered was the same in its effect as though a general verdict had been actually rendered under the direction of the court. Hutchinson v. Chicago & Northwestern Ry. Co., 41 Wis. 541, 553; McNara v. Chicago & Northwestern Ry. Co., Id. 69; Williams v. Porter, Id. 422. The evidence is sufficient to support the special findings. The fact testified to, under objection, in response to theques [265] lion as to the usual and ordinary way of constructing partition walls of the kind in controversy in Red Wing, was proved by other testimony, not objected to; and hence, whether the .ruling on that question was correct or not, it is evident that it did no harm and furnishes no ground for a new trial. The point that no contract was in fact made between the parties was not raised in the court below, and it is now too late to mnke it after the ease has been litigated upon a different theory. In respect to the point that “it does not appear that plaintiff has ever offered or has ever been willing to convey to defendant an equal undivided one-half in fee simple of said -cellar and brick wall,” it is sufficient to say that such a conveyance is not made by the contract a condition precedent to ■ibe payment which defendant obligated himself to make. Judgment affirmed.