Wisconsin Farm Land Co. v. Bullard

Maeshall, J. Evidence was allowed against appellant’s objection, to the effect that before making the contract of sale with Holtz respondent had a conversation with Canfield, appellant’s managing agent, in which it was agreed that if respondent effected a sale of the land appellant would make no claim for commission under the contract; and that, relying thereon, respondent contracted with Holtz, making the price ■of the land to him $4,350. Error is assigned on that. The evidence seems to have been offered to establish an estoppel in pais. It was certainly not competent for any other purpose. As no such estoppel was pleaded and there was ample ■opportunity to do so, the evidence was irrelevant and should have been rejected. Gill v. Rice, 13 Wis. 549; Warder v. [324] Baldwin, 51 Wis. 450, 8 N. W. 257; Gans v. St. Paul F. & M. Ins. Co. 43 Wis. 108. However, tbe error was not prejudicial if tbe finding of tbe jury that respondent was released from bis contract cannot be disturbed. Tbe point is made that tbe verdict did not dispose of all the issues, since it only covered tbe subject of whether respondent was released from his contract; that tbe evidence on one side was to tbe effect that there was an absolute release, and on tbe other that there was a conditional or partial release, hence that tbe questions should have been framed sc as to require tbe jury to pass on whether there was an absolute or partial release. In that counsel falls into tbe common error of supposing that a special verdict should be framed tc cover each particular matter of dispute between witnesses instead of facts in issue under the pleadings. The only proper test to which a special verdict should be subjected is the pleadings. If it covers all the facts therein put in issue, in respect to which the evidence is conflicting, it is sufficient. Such is the plain letter of the statute, sec. 2858, Stats. 1898. Mauch v. Hartford, 112 Wis. 40, 54, 81 N. W. 816; Goesel v. Davis, 100 Wis. 678, 76 N. W. 768; Baxter v. C. & N. W. R. Co. 104 Wis. 307, 313, 80 N. W. 644; Cullen v. Hanisch, 114 Wis. 24, 89 N. W. 900. The only issue raised by the pleadings on the subject of a release from the contract was whether respondent was wholly -released. The form of the question submitted fitted that issue perfectly. If the attention of the jury had not been particularly called to the state of the evidence on the subject there would have been no reasonable probability of their rendering such a verdict as they did without coming to the conclusion that there was an absolute release as testified to by respondent. But the possibility of any mistake in that respect was effectually guarded against by the instruction given by the court to the effect that if the jury believed that there was but a partial or conditional release they should answer the question “No.” [325] It is claimed that tbe finding of tbe jury as to appellant baying released tbe contract is contrary to the weight of tbe ■evidence. That may be. If such be tbe fact it constitutes no ground for tbe reversal of tbe judgment. It is too familiar to warrant more than a mere reference to it, that if there is any credible evidence to support tbe finding of tbe jury their •decision upon appeal must be regarded as a verity. Tbe further claim is made that, tbe jury having found that appellant was tbe procuring cause of tbe sale to Holtz, it was ■entitled to tbe commission stipulated for in tbe contract, as, according to respondent’s own testimony, be was not to be deemed released except as regards a sale made by him; that tbe vei’dict that appellant was the procuring cause of tbe sale is wholly inconsistent with tbe view that respondent made tbe ■sale. We do not look at the findings of tbe jury and tbe evidence that way. Tbe finding that appellant was a procuring •cause of tbe sale obviously means no more than that it drew Holtz’s attention to tbe farm, and that its act in that regard was what led up to tbe sale. That finding would have been fatal to respondent if tbe jury bad decided that tbe release was conditional or partial, as appellant’s evidence tended to prove. Having decided that the release was unconditional, tbe mere fact that appellant so interested Holtz in respondent’s land that it led to bis making a sale thereof, does not furnish appellant a ground of action. Notwithstanding it directed Holtz’s attention to tbe land, it was perfectly competent for it to subsequently release respondent absolutely from bis contract, leaving him free to deal with Holtz or any one else, as tbe jury found was done. Tbe foregoing leaves nothing more that need be said in disposing of this case. Tbe judgment must be affirmed. By the Gourt.' — So ordered.