Ossowski v. Wiesner

BaRdeen, J. The several errors relied on for a reversal of this judgment may be reduced to the single proposition that the verdict is against the weight of the evidence. There are no exceptions to the introduction of evidence, and no [240] fault is found with the judge’s charge to the jury. Plaintiff’s brief contains a long and exhaustive discussion of the evidence (in violation of Supreme Court Rule IX), in which he seeks to convince this court that the verdict of the jury ought not to be sustained. The earnestness of counsel has led this court to review the evidence presented with great care, and to deliberately consider the points suggested as being fatal to the defendants’ case. The main grounds of controversy were whether the original lease had been changed as to the amount of rent reserved, and also whether there had been a change of the tenancy to one from month to month. It was admitted by plaintiff on the trial that Wiesner was “kicking about hard times,” and that as to the rent coming due in July, 1896, he made him a present of $18.33, and then accepted a check for $90 in full for the rent then due. Thereafter he was to occupy the building at the same rate while times were hard, and when times got better Wiesner was to pay in full. As to the change in the tenancy, he enters his unqualified denial. Wiesner testified as to the agreement set up in his .answer, and produced a check dated July 8, 1896, for the sum of $90, payable to the order of Niek and Mary Ossowski, upon which the following statement was written: “ In full for l-ent for saloon property for month of July, 1896, under agreement made July T, 1896, that in future tenancy shall •be from month to month at $90 per month.” The check was indorsed by Wide and Mary Ossowski. Plaintiff’s explanation of the circumstance is that he did not know the check contained any writing other than the call for the amount of money named.. In this he is directly contradicted by the cashier of the bank. Mr. McDill testified that plaintiff came in with the check, and asked him what the writing was on it; that he read it over to him and asked him if that •was his agreement with Wiesner, and he replied that' it was. •Jerome Barker also testified that plaintiff showed him the [241] ■check, and that he read it over to him. Another witness said he saw Barker in the saloon, and that they had a check there, and asked him if he wanted to see it. J. D. Civrran, one of the defendants, said plaintiff frequently appealed to him in regard to the rent, and that he told witness about the 8th or 9th of July that he had settled with Wiesner, got his money, and made a new agreement. There are other corroborating circumstances that need not be mentioned. The court instructed the jury that if they were satisfied that plaintiff and Wiesner made the agreement as claimed, and that the former accepted the check in question, understanding what it contained, and retained it with that knowledge, it became a valid and binding agreement. We cannot now speculate upon the probability or improbability of the statements of witnesses. The case has passed the scrutiny of the trial court, who saw the witnesses and listened to the testimony given. He possessed many advantages of judging of their truthfulness and candor that cannot come to the appellate court. He refused to disturb the verdict, and we ought not to do so unless we can see clearly and distinctly that it is against the weight of the evidence. Hot with standing tlio able and elaborate argument of counsel for the plaintiff to the contrary, we think the case presents many circumstances supporting the. conclusion arrived at by the jury. We do not see how the jury could very well have arrived at a contrary conclusion. The plaintiff discredited himself. He denied every fact and circumstance that tended against him with-the utmost particularity. His denials were so positive and circumstantial as tó give rise to a suspicion that he was traveling dangerously near. the line of falsehood. The case was one peculiarly for the jury, and we can find no good reason for disturbing their finding. We are urged to give damages to defendants for their delay, under sec. 2951, Stats. 1898. The discretion vested vin this court to award such damages will never be exercised [242] unless the appeal or writ of error was clearly frivolous and taken in bad faith. Morse v. Buffalo F. & M. Ins. Co. 30 Wis. 534; Rice v. Garnhart, 34 Wis. 470; Northwestern M. L. Ins. Co. v. Irish, 38 Wis. 361. We cannot say that the 'writ taken in this case was either frivolous or taken in had faith. By the Court.— The judgment of the circuit court is affirmed.