Treat v. Hiles

LyoN, J. We have here three appeals from orders in the same action, none of which necessarily involve, to any considerable extent, the merits of the action. They may all be disposed of by the application of approved rules of practice, without reference to the merits of the controversy between the parties. They will be considered briefly in their order. 1. The defendant appeals from an order denying his motion for judgment in his favor on the special verdict returned by the jury. This court has often held that an order for judgment is not appealable. Johannes v. Youngs, 42 Wis. 401; Joint School Dist. v. Kemen, 68 Wis. 246; Murray v. Scribner, 70 Wis. 228, and cases there cited. The reason of the rule is stated in Murray v. Scribner to be that, although such order may affect a substantial right, it does not determine the action or prevent a judgment from which an appeal may be taken. See B. S. sec. 3069, subd. 1. For the same reason the rule is applicable to an order denying a motion for judgment on a verdict. Such an order does not prevent a judgment for the other party from which the moving party may appeal, or an order for a new trial from ■which he may also appeal. Indeed, the result of a verdict necessarily is a judgment of some sort for one party or the other, or a new trial, and on an appeal by the aggrieved party, whether from the judgment or the order for a new trial, the court will determine whether such1 party is entitled to judgment on the verdict. Neither does an order denying a motion for judgment on the verdict involve the merits of the action within the [275] meaning of subd. 4 of the above section. It is practically a ruling by the court on the trial with the same incidents which attach to a ruling sustaining a demurrer ore terms, or admitting or rejecting testimony, and the like. Probably a bill of exceptions would be necessary to preserve the ruling denying the motion for judgment, notwithstanding the same was reduced to writing and filed in the case. See Johannes v. Youngs, 42 Wis. 401. It must be held that the order denying the defendant’s motion for judgment is not appealable, and hence the appeal therefrom must be dismissed. 2. The form of the plaintiffs’ appeal is from that part of the order of January 12, 1889, which “ awards and orders a re-assessment in this action of the plaintiffs’ damages herein.” This is precisely the relief the plaintiffs asked. Considering only the form of the order, the appeal cannot be sustained, for certainly the plaintiffs cannot attack by appeal an order made at their request. It is immaterial that such request was in the alternative. We .are inclined to think, however, that the appeal should be construed to be from the portion of the order which denies the plaintiffs’ motion for judgment. But for the reasons given above, such construction will not save the appeal. The plaintiffs! appeal must, therefore, be dismissed. 3. The defendant’s appeal from the order of January 12, 1889, is well taken under subd. 3, sec. 3069, R. S., because it grants a new trial of an issue in the action. This appeal presents the question whether the new trial thus granted is properly restricted to the question of damages or should include all the issues. The special findings may all be included under two general heads: (1) Those relating to the alleged contract to work the quarry jointly — the making thereof by the parties, its terms and conditions, the circumstances under which it was made, etc. (2) The damages accruing to the plaint [276] iffs by reason of the breaches of such contract by the defendant, which include many specific findings of the elements of such damages and the circumstances affecting the amount thereof. By fair implication, all the findings of the latter class, including the corrected answer to question 21, were set aside and nothing determined by any of them would be res adjudicaba or have any effect in the re-assessment of the damages should the same be re-assessed under the order of January 12, 1889. The correction of the answer to question 21 is nothing more than a determination by the court that the undisputed testimony proves there were at least 150,000 cords of stone in the quarry. This means, of course, the quantity therein which would be marketable at a profit, to the exclusion of mere rubbish or unmarketable rubble stone. We do not think the undisputed testimony supports the finding, but whether it does or not is not very material to the determination of this appeal. The circuit court was .of the opinion that the damages assessed to the plaintiffs. were, under the testimony and special findings, inadequate, and so set the assessment aside. If the question of damages was the only issue in the case we should say the court did not thereby exceed the limits of a sound legal discretion, and hence would not disturb the order in that behalf. But there is another issue in the case of controlling im-f portance. It is denied by the defendant that the parties^ ever entered into a contract for the joint working of thej quarry, as claimed by plaintiffs, and there is much testi-j mony in the record which tends to support such denial. Considering all of the findings on that issue, we are brought to the conclusion that there is an infirmity in the verdict which renders it an unsafe basis for a judgment affirming that such contract was made. In their answers to questions 4, 9, 10, 49,,and 51 the jury [277] find in substance and effect that the defendant entered into the contract with plaintiffs, as claimed by them, for the working of the quarry on joint account, and in part execution of such contract the parties employed a foreman and purchased and paid for tools to open the quarry; but that such contract was a conditional one — the condition being that before it should be binding upon the defendant he should investigate the quarry and ascertain its extent and value. And further that the object of opening the quarry (to which end the foreman was employed and tools purchased) was simply to ascertain whether or not it could be profitably worked. "While the contract remained conditional, probably it was competent for the defendant to terminate it without incurring liability to damages. It seems from the answer to the last question that he did so, for it is there found that before the quarry was opened and investigated he refused to work the same pursuant to the plaintiffs’ proposition in that behalf thus conditionally accepted by him. The circuit court did not disturb any of the above findings. By the order of January 12,1889, it was adjudicated not only that they established the contract set out in question 4 and the answer thereto, but that the existence of such contract as an absolute, binding obligation upon the defendant, for the breach of which he is liable to respond in damages, had thereby become a verity in the case which could not thereafter'be controverted. In view of the infirmity in the verdict above suggested, we must hold that such adjudication was erroneous. If a new trial shall be granted, the same should inclúde all the issues. We think neither the original nor corrected verdict is a proper basis for judgment on either issue, and if either party desires a new trial of all the issues the same should be granted. We have endeavored to say as little as possible in this [278] opinion on the-merits of the controversy, lest we might inadvertently prejudice the case of one or the other of the parties if the cause shall be again tried. All questions of law arising upon the alleged contract, as well as the existence of such contract and the rule of damages, must be regarded as undetermined. Neither do we determine whether in an action at law the court may properly grant a new trial of a part only of the issues, leaving the verdict to stand as to other issues; or the cases in which that practice may be adopted, if there are such cases. By the Court.— The appeal by defendant from the order denying his motion for judgment on the verdict is dismissed. The appeal by plaintiffs from a portion of the order of January 12, 1889, is also dismissed. On the defendant’s appeal from the last mentioned order the order is reversed. The cause will be remanded for further proceedings according to law.