H. S. Benjamin Wagon & Carriage Co. v. Merchants' Exchange Bank , 63 Wis. 470 ( 1885 )

LyoN, J-.

1. The undisputed evidence shows that in ascertaining the value of the notes which constitute the subject matter of this action, interest was computed thereon to the date of the demand, and added to the principal, and then interest Was computed upon the whole amount to the date of the verdict. This was error. The plaintiff’s recovery could not properly exceed the amount due on the notes at the time the verdict was rendered, and hence simple interest only should have been computed thereon to that time. The excess, however, is small, and might have been remitted from the "verdict.

2. It was also error to include the two notes which had been transmitted, in due course of business, to other parties for collection. Tbe consent of Mr. Benjamin thereto is fairly implied from tbe nature of tbe transaction. These notes not being in tbe possession of tbe defendant when tbe demand was made, were not reached by such demand, and their value is not recoverable in this action. Tbe verdict in this respect is in opposition to tbe express instructions of tbe court. Tbe amount of these notes is easily ascertained, and might also have been remitted from tbe verdict.

3. The remaining ground upon which tbe new trial was granted goes to the merits of tbe action. It is very evident from tbe remarks of tbe county judge when be granted a new trial that, in bis opinion, be bad not, in bis charge to tbe jury on tbe trial, given sufficient weight to tbe following provision in tbe contract of tbe bank with Benjamin: “We agree to make a reasonable effort to realize upon all securities we may have as collaterals to such paper,” and to tbe further fact that tbe bank held no paper of Benjamin at that time other than tbe notes involved in this action. We may not be prepared to give to those facts tbe importance or conclusiveness which seems to have been attached to them by tbe judge, yet they are so significant we are unable to say it was an abuse of discretion tó award a new trial because proper weight bad not been given to them in the instructions. Tbe trial courts have a wide discretion in tbe matter of granting new trials, and it is only in cases of clear abuse that this court is authorized to interfere with tbe exercise of it. We think no such case is presented in this record.

Sustaining tbe order granting a new trial on tbe ground last above mentioned (as we do), it was not error not to impose terms upon tbe defendant. It is plain tbe case is not within tbe rule of Pound v. Roan, 45 Wis. 129, in this respect.

By the Gow't.— Tbe order of tbe county court granting a new trial is affirmed.