Welch v. Dunning

Vinje, J. Defendant makes a strong argument claiming that the findings of the jury to the effect that he knowingly made false representations as to the health of the cattle and their having been tested according to the Wisconsin law are not sustained by the evidence. We have carefully examined the same and have reached the conclusion that they find support in the evidence. The representation that they were healthy is found upon conflicting evidence, the plaintiff testifying that such representation was made and the defendant denying it. Evidently the jury believed the plaintiff. There is no dispute but that the certificates of inspection furnished were false to the knowledge of the defendant. They did not come into the hands of the plaintiff till after the contract was closed and the cattle shipped. Neither did the slips showing individual inspection come into his hands until the cattle were shipped. He was therefore without any knowledge or means of knowledge as to the falsity of the certificates till after he had received the cattle and shipped them. Question numbered 3 read: “If you answer questions 1 and 2 or either of them Tes, was such representation false f’ The jury answered both questions 1 and 2 Yes, and also question 3 Tes. The only reasonable construction that can be given to question 3 and its answer is that the jury found that the representations made in both questions 1 and 2 were false. [539] It is evident that the answer to question 6 is inconsistent with the answer to question 4, hut the record clearly shows that the answer to question 4 finds support in the evidence while the answer to question 6 does nbt, so its answer may he disregarded. Defendant claims the law of Illinois governs the case. Since the jury’s findings that the defendant knowingly made false representations as to the health of the cattle and certificates to be furnished are sustained by the evidence, it becomes immaterial whether the case falls under the law of Illinois, which it is claimed requires knowledge of the falsity of the representations made in order to incur liability, or under the laws of this state. Moreover, the law of Illinois in this respect was not pleaded and was therefore not admissible in evidence. White v. M., St. P. & S. S. M. R. Co. 141 Wis. 141, 133 N. W. 148. Evidence was received over objection of defendant to the effect that he had had trouble in previous recent shipments of cattle on account of their haying tuberculosis. The evidence was received for the purpose of showing knowledge on his part that his cattle were not healthy. It was competent upon that subject. It is claimed that the damages found are excessive. Upon the question of damages the court instructed the jury as follows : . “In considering what shall be your answer to this question you will first consider the sum which you find from the evidence is the difference between the two sums; the first sum is the fair and reasonable value of the cattle here in question if they had been in the condition which you find Mr. Dunning represented them to be, if you find he made such representations ; the second sum is the fair and reasonable value of these same cattle in the condition in which you find them to have been at the time they were in Mr. Wetch’s possession in North Dakota; the difference between these two sums is the first element you will have to consider in answering this last question. [540] Other elements that yon will have to consider are such sums as you find were reasonably and necessarily expended in railway travel and in transporting these cattle to Dakota, in caring for them on the way and while they were still under the care of Mr. Welch in Dakota, together with such sum as will reasonably and necessarily measure the amount expended in testing these cattle, destroying their carcasses, and disinfecting the buildings in which they had been kept. Whatever sum will measure all these elements fairly and reasonably, that sum will be your answer to this last question.” The charge correctly stated the law and the evidence supports the award made. Defendant’s other assignments of error are deemed not well taken. The case is one presenting practically only questions of fact for adjudication. Hence, when those are found by the jury there remains only the task of ascertaining whether or not they have sufficient support in the evidence to sustain them. By the Gourt.- — -Judgment affirmed.