Morton v. Smiley

Dodge, T. It is quite apparent, both from the bill of exceptions and from the argument in this court, that this case was so complicated upon the trial as to obscure the very simple ground of action set forth in the complaint, and supported by at least some evidence. That ground of recovery was neither tort, breach of trust, nor money had and received, but was simply that the two defendants promised to. [158] obtain for plaintiff from Broderick $112.50, to be applied on tbe judgments against plaintiff, if be would execute and deliver to Sherron a warranty deed of bis share in tbe land. Plaintiff testified unambiguously to tbe making of such promise. The performance of the consideration by him and the failure to obtain the money by tbe defendants was undisputed, as was also- tbe resulting damage to him. If tbe jury believed his testimony that such promise was made, plaintiff was entitled to recover. If there is any credible evidence to support a contention of fact, a question arises which must be submitted to the jury, although the trial court may be convinced that the preponderance of the evidence is to the contrary. Lewis v. Prien, 98 Wis. 87, 73 N. W. 654; Beyer v. St. Paul F. & M. Ins. Co. 112 Wis. 138, 141, 88 N. W. 57. Here, as already stated, there was the testimony of the plaintiff that the defendants did promise, as alleged in the complaint, corroborated by 'the extreme improbability that he would make a warranty deed of his interest without some understanding that he should be paid therefor. Hence it was error to withhold that question from the jury. The reason given by the trial court, namely, that the evidence failed “to show any trust reposed in the defendants,” was not responsive to the situation. The evidence at least tended to prove a promise by the defendants; thus rendering immaterial the reposing of any trust in them otherwise. By the Court. — Judgment reversed, and causé remanded for a new trial.