Sailer v. Barnousky , 60 Wis. 169 ( 1884 )

Cassodav, J.

The parties lived some distance from each other. It was the theory of the defense that at the time of borrowing the money it was agreed between the plaintiff and defendant that the latter would repay the money by sending it to the plaintiff by a Mr. Kilgore, who ran a stage and carried the mail between the two places. The plaintiff testified, in effect, that at the time he loaned the money to the defendant the latter agreed to bring it back himself or send it by Mr. Kilgore in a few days, and that he was satisfied to have it sent by Mr. Kilgore so long as he got it. It appears from the undisputed testimony that a few days after borrowing the money the defendant gave to Kilgore the amount, with directions to deliver it to the plaintiff. Kilgore testified that ho received the money as stated; that he took it to the plaintiff’s saloon and paid it to one of the two boys therein, apparently in charge. The plaintiff and each -of his boys testified that Kilgore never paid the money to either of them. Eor want of exceptions to specific portions of the charge we are precluded from considering them. The defendant requested the court to instruct the jury that “ if you find from the evidence that it was understood between the parties to this action that the money in question should be paid by the defendant to Mr. Kilgore, to be delivered by him to the plaintiff, and that the money was paid to Kilgore as agreed, then your verdict will be for the defendant.” The court refused to so instruct, and gave to the jury no equivalent instruction. There is no claim that' the request was not made in time. If at the time of borrowing the money it ivas understood between the parties that the money in question should be paid by the defendant to Mr. Kilgore, to be delivered by him to the plaintiff, and the money was so paid to him as agreed, then, it seems to us, the defendant became discharged of all further liability. Fiske v. Fisher, 100 Mass., 97; Osborn v. Baird, 45 Wis., 189, Whether the facts stated in the instruction were true or not was for the jury, and not the court. The mere fact that Kilgore ran a stage and carried the mail between the two places raised no presumption of law or fact that he was the agent of the defendant — much less his agent exclusively. If any inference is to be drawn from that fact, it would seem to be the other way. The point covered by the instruction ivas certainly material to the issue. It is equally clear that there was evidence tending to support it. These things being so, the defendant was entitled to have the instruction given. Campbell v. Campbell, 54 Wis., 98. Of course, if the agreement was that the money should be so sent at the defendant’s risk, that would be a different question.

By the Court. — Hhe judgment of the circuit court is reversed, and the cause is remanded for a new trial.