Optenberg v. Skelton

Dodge, J. By reason of the fact that the bill of exceptions is not certified to contain all of the evidence, we are unable to consider several of the assignments, of error, especially those which assail the answers to certain questions in the special verdict as contrary to the evidence, and that which assigns error for refusing to direct a verdict in plaintiff’s favor. [244] The first, fourth, and eleventh assignments of error are predicated on the admission in evidence and submission to-the jury of the question of loss of profits, or, rather, loss of earnings of the engine, during the time it was actually operated, by reason of its defects. These assignments need no consideration; for, even if it be conceded that such damages were speculative and remote, no error prejudicial to the plaintiff would be presented by the record, since the court rejected the allowance made by the jury therefor, and his conduct in admitting evidence thereof, and permitting" the jury to find thereon, can have had no effect on the judgment appealed from. Equally unnecessary of consideration are the second, seventh, and ninth assignments of error, which raise the contention merely that the engine was conclusively shown by the pleadings to have been accepted by the defendant. This contention might be conceded without disclosing prejudicial error. The only damages of which recovery is allowed are those entirely consistent with the acceptance- and retention of the machine. ' They are special damages resulting from defects therein which constituted a breach of the warranty that it should be in good working condition. Had defendant not accepted the engine, but elected to return the same by reason of the defects, his right of recovery would be all sums paid upon the purchase price therefor, together with such special damages as he might have suffered while fairly experimenting therewith and before discovery of the breach of the warranty; but such damages are neither demanded in the counterclaim nor allowed by the judgment. The purchaser, in the event of breach of warranty, has the election of two remedies, namely: first, to return the article purchased, recover back purchase price paid, and certain special damages; or he may retain the machine, and recover or recoup against the agreed purchase price such damages as its defective con [245] dition imposes upon him without negligence on his part. Fisk v. Tank, 12 Wis. 216; J. I. Case P. Works v. Niles & Scott Co. 90 Wis. 590, 606; S. C. 107 Wis. 9. The damages sought in this action and included in the judgment are all of that character. They are the wastage of time of himself and his threshing crew in the actual effort to use the machine, upon plaintiff's solicitation that he do so, and the value of his own time in reasonable efforts to remedy those defects, together with a small sum for the hire of another engine for a few days to accomplish the work for which, had this engine been as warranted, it would have served. The most serious question presented is whether the special verdict is sufficient to support the judgment, which includes -the value of defendant’s time spent in thirteen trips to get engine repaired and in six days spent in trying to repair it. The value of such time is duly found by the verdict, and cannot be questioned. The. fact that such time was in fact consumed is, however, not found by the' verdict, although clearly the court must have decided or assumed that it was established by the evidence, and that, too, beyond controversy, since he did not submit it to the jury, but substantially stated it as a fact in the questions framed and submitted. Several rules have been declared as governing the attitude of this court towards judgments appealed from when the evidence is not all brought into the record by bill of exceptions certified to contain it. In such case it is said the only question is whether the pleadings and verdict or findings support the judgment. While v. Bartz, 88 Wis. 424, 428; Hussa v. Sikorski, 101 Wis. 131, 133. If they do not, it is said reversal must result. Blossom v. Ferguson, 13 Wis. 75; Hildman v. Phillips, 106 Wis. 611, 616. The last rule is modified to the extent that reversal is not necessary if the judgment is supported and warranted, in trials to the court, by the evidence, or, in trials to a jury, by the uncon-troverted evidence. Williamson v. Neeves, 94 Wis. 656, 661; Gatzow v. Buening, 106 Wis. 1, 17. This exception grows [246] out of the now perfectly well-established rule that even in jury trials issues of fact need not be submitted to the jury if the evidence thereon is undisputed, all one way, and capable of supporting only one reasonable inference. On this principle rests the power of the court to render judgment of nonsuit or to direct a verdict. Maanum v. Madison, 104 Wis. 272; Finkelston v. C., M. & St. P. P. Co. 94 Wis. 270, 278; Brauchle v. Nothhelfer, 107 Wis. 467; Musbach v. Wis. C. Co. 108 Wis. 57. A bill of exceptions, duly certified to contain all the evidence, is obviously necessary to inform this court what was the evidence, so that we can examine and decide as to the correctness of the facts deduced therefrom on the trial;- and any fact decided to exist by the tribunal, court or jury, having authority to decide, must be conclusively presumed to exist, in the absence of such bill of exceptions, for we then have no means of knowing the contrary, and must presume against error. From the foregoing it necessarily follows that when the trial court, sitting with a jury, expressly decides an issue of fact, we'must presume its decision was supported by uncon-troverted evidence, if the evidence is not before us. Edleman v. Kidd, 65 Wis. 18, 23. We do not decide that the mere rendition of judgment upon a special verdict which fails to dispose of all the issues will be construed as a decision by the court of the omitted issues, for that question is not before us. In the case at bar the court clearly assumed as established without controversy, and so declares, upon the record, that the defendant did make the thirteen trips, and did devote the six days’ labor to remedying the defects against which plaintiff had warranted, so that the value of his time was a legitimate element of damages. We conclude, therefore, that the judgment is supported by the verdict and the facts found by the court as uncontroverted, and, no error appearing to have been committed, should be affirmed. By the Court.— Judgment affirmed.