Dever v. Town of Anson , 43 Wis. 60 ( 1877 )

Cole, J.

We cannot say there was any abuse of discretion in granting a new trial in this case. The plaintiff was certainly entitled to a verdict on three of the orders counted on in his complaint, to which there was no defense. But it is said that the plaintiff testified on the trial that all the orders upon which suit was brought were delivered to him under what is called the “ swamp road contract;” and that he should be concluded by these statements. This is not a fair or just inference from what he says. Besides, it is manifest that in the portion of. the testimony referred to, the plaintiff had not in mind, nor was his attention called to, orders numbered 807, 836 and 910; and bis language should not be applied to them.

But,'again, it is said that the-new trial should have been granted only as to these three orders. The learned circuit court, however, did not see fit to restrict the new trial, even if it was within its power or discretion to do so. It granted the new trial generally, as to all the causes of action set up in the complaint. It is possible the circuit court might have thought that the jury had been misled by some portions of the charge in respect to the defense of fraud relied on in the answer, and that justice would be promoted by a retrial of all the issues. But whatever considerations might have controlled or influenced the mind of the circuit judge in granting a new trial generally, it is certain there was no abuse of discretion, upon the facts and circumstances of the case.

By the Court. — The order is affirmed.