Bailey v. Bode Bros.

DoeRFler, J. The jury found that the plaintiff was deceived as to the make of the furniture solely by the conduct of Michael Bode, defendant’s salesman. There is credible evidence in the case that when the plaintiff first called at the defendant’s store a “Karpen” booklet was handed to her, which set forth the special qualities of “Karpen” made furniture, and which described certain tags on the furniture by which the make of the same could be identified. One Kaufman, one of defendant’s salesmen, testified as follows: “While I waited on her I showed her ‘Karpen’ goods. I showed her other goods. I explained to her the markings on ‘Karpen’ furniture. I called her attention to the little ‘Karpen’ tag that is sewed on either side, which cannot be taken off unless it is cut off. It was located right under the center cushion.” The jury was at liberty to believe this testimony, and evidently did so. Under these circumstances it is not surprising that the jury found as it did by its answer to the sixth question of the special verdict. Instead of availing herself of the information thus imparted to her, she chose [267] to ignore the same entirely, and to' depend upon the conduct of defendant’s salesman. She is therefore not entitled to the relief prayed for in the complaint. Barndt v. Frederick, 78 Wis. 1, 47 N. W. 6; Porter v. Beattie, 88 Wis. 22, 59 N. W. 499; Warner v. Benjamin, 89 Wis. 290, 62 N. W. 179; Farr v. Peterson, 91 Wis. 182, 64 N. W. 863; Bost-wick v. Mutual L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246; Northern S. Co. v. Wangard, 117 Wis. 624, 94 N. W. 785; Kaiser v. Nummerdor, 120 Wis. 234, 97 N. W. 932; Miller v. Hackbarth, 126 Wis. 50, 105 N. W. 311. As the answer of the jury to the sixth question of the special verdict is fatal to plaintiff’s right of recovery, the jury’s answer to the ninth question thereof need not be considered. By the Court. — The judgment of the lower court is reversed, and the cause is remanded with directions to dismiss plaintiff’s complaint with costs.'