Conrad v. Kelley

Maesiiall, J. If the transaction between the plaintiff, through his agent Macdonald, and Carr was a sale conditional or otherwise, defendant, as assignee of the latter for the benefit of his creditors, was entitled to recover. S. L. Sheldon Co. v. Mayers, 81 Wis. 627. Otherwise, plaintiff was entitled to recover. It is contended by appellant’s counsel that there was no evidence tending to establish the proposition that the cigars were consigned to Carr to be sold on respondent’s account as claimed by him, and that the cause should have been taken from the jury in his favor. The record does not bear out that view. The evidence of Macdonald tends strongly to show that Carr was the agent of plaintiff, not his vendee, while the evidence of Carr is reasonably susceptible of a contrary inference and is supported by the circumstance,— not conclusive it is true, — that the goods were billed to him as vendee. In that situation, certainly, the case, as to the facts in issue, should have been determined by the jury under proper instructions. It is further contended by appellant’s counsel that the court erred in submitting to the jury, as the only fact in [255] dispute, whether the understanding between the parties was that the cigars should be paid for out of the identical money received therefor by Carr. The assignment of error in that regard must be sustained. The evidence, as it seems, did not warrant the submission of that question as the turning point in the case. There was no evidence to warrant the conclusion reached by the jury, that there was an understanding that plaintiff should receive $33 per thousand for cigars sold by Carr out of the money received by him. Neither Carr nor Macdonald testified to any such agreement or understanding, and there was no fact or circumstance testified to from which such an understanding could be reasonably inferred, except the fact in issue as to whether the cigars were merely consigned to Carr for sale as plaintiff’s agent. The controversy as to such fact, under proper instructions, should have been submitted to the jury. A jury may determine the existence of evidentiary facts from evidence more or less directly establishing them, and follow the reasonable inferences from such facts to a conclusion as to the ultimate issue to be decided by them, but should not be required to determine a fact respecting which there is no evidence whatever, except what lies beyond the issuable facts and does not really exist at all so as to be taken note of in any rational process of reasoning, till such issues are determined. If there had been some evidence directly bearing on the ■question of whether the cigars were to be paid for out of the money received for them by Carr, it would have been proper to have directed the jury to determine the truth in "that regard, because if payments were to be so made that circumstance would point to the existence of a mere agency contract between plaintiff and Carr, though not necessarily •conclusive. The difficulty, however, reached by the error assigned regarding the manner in which the case was submitted to the jury, is that there was no evidence bearing on [256] the question. The real controverted question of fact, in respect to which there was evidence reasonably susceptible of a finding either way, was decided by the court as a question of law, and for that reason the judgment must be reversed and the cause remanded for a new trial. By the Court.— So ordered.