Second National Bank of St. Paul v. Larson

LyoN, J. 1. The record fails to show that any motion for a new trial was made before judgment. Counsel for defendant maintains that, because such motion was not made, this court cannot review the testimony. As a general rule of practice, this is a correct proposition. But here the plaintiff moved the court at the close of the defendant’s testimony, and again at the close of the trial, to direct the jury to return a verdict for the plaintiff for the amount unpaid on the note in suit, because of the alleged failure of the defendant to prove his counterclaim. The exception to the refusal of the court to give such direction takes the case out of the general rule above stated, and requires this court to review the testimony in order to determine whether the motion should have been granted. 2. The learned counsel for the plaintiff maintained at considerable length in his argument, and cited many cases in support of his contention, that, although Stone wrongfully stopped the shipment of lumber on Larson’s contract with the Minneapolis firm, yet because the contract [473] Avas partly performed, and the firm did not offer to return what it had received under it, it was not competent for the firm to rescind it. We need not pass upon this proposition, for the reason that the contract in the first instance was rescinded by Stone, acting for L. O. Larson. All that the firm did was to acquiesce in such rescission, and to persist in such acquiescence (as it lawfully might) when Larson desired them to go on with the contract. Stone was the general agent of L. 0. Larson, and doubtless the rescission by him bound his principal. 3. A writing signed by Stone and L. O. Larson, purporting on its face to be a compromise and settlement of all demands and claims held by either against the other, Avas put in evidence by the plaintiff. The testimony concerning this instrument is conflicting, but it tends to show that Larson signed it Avithout reading it, on the faith of false and fraudulent representations made to him by Stone to the effect that it was an instrument of an entirely different character, and that in fact no compromise including such claim was ever entered into betAveen them. Under the charge of the court, it is obvious that the significance of the fifth finding is that such testimony was true. 4. It was undisputed that the plaintiff bank took the note in suit after the same became due by its terms, and that the claim of L. 0. Larson against Stone for damages Avas assigned to the defendant before this action was commenced. The testimony has been examined, and we find that it supports each controverted finding of fact in the special verdict. That those findings and the undisputed facts amply support the judgment there can be no doubt. 5. The court instructed the jury to allow interest on damages from the time they accrued, which was in 1883. It is claimed that this is error. We do not determine whether it is erroneous or not, for the reason that the charge was not excepted to, and counsel for plaintiff acquiesced in [474] the ruling by admitting that such damages exceeded the sum unpaid on the note. This could only be true by allowing interest on the damages. 6. It seems that a motion for new trial for newly discovered testimony was made a terna subsequent to that at which the judgment was rendered. The affidavits and ' proofs upon which such motion was founded are printed in the case, and error is assigned upon the refusal of the court to grant the motion. We cannot review such ruling upon this appeal, which is from the judgment. No rule of practice is more firmly established in this court than is the rule that, on an appeal from a judgment, orders made in the cause after judgment cannot he reviewed. Leary v. Leary, 68 Wis. 662, and cases cited in the opinion by Mr. Justice Taylor. We find in this record no error which will justify the court in disturbing the judgment. By the Gourt.— Judgment affirmed.