International Text Book Co. v. Samer ( 1913 )

Siebecker, J.

Plaintiff seeks to recover tbe balance alleged to be due under tbe terms of a written contract, whereby tbe plaintiff agreed to furnish tbe defendant a course of instruction in all subjects embraced in an examination under tbe civil service commission for clerk or carrier in tbe post-office branch of tbe United States civil service, for which tbe defendant agreed to pay $45 in monthly instalments of $5.

Tbe course of instruction to be furnished tbe defendant was intended to prepare him to pass tbe civil service examination for rural mail carrier. Tbe contract was signed and a payment of $5 made on April 24, 1906. Eive weeks later another payment of $5 was made by tbe defendant. Eor about six weeks after tbe signing of tbe contract the plaintiff sent to tbe defendant and tbe defendant received pamphlets of instruction and sets of questions to be answered by tbe defendant. Defendant sent in several sets of answers to questions received ,by him.

In June, 1906, tbe defendant entered a business college at Oshkosh and remained there until November. During tbe month of November tbe defendant took tbe civil service examination, but failed to pass. In April of tbe succeeding year be again took tbe civil service examination and passed. During March, April, and May, 1907, the defendant was a student at tbe business college. Besides tbe two payments mentioned above, tbe defendant paid $5 on November 10, 1906, and $3 on August 23, 1907.

Tbe answer to tbe complaint alleges that tbe contract was secured by fraud.

Tbe plaintiff introduced evidence tending to show that tbe course which was to be furnished tbe defendant was calculated to prepare bim to pass tbe civil service examination wbicb be desired to take, tbat tbe defendant bad made payments npon tbe contract after be omitted sending in answers to tbe questions sent bim, tbat be made no complaint about tbe course until after be bad passed tbe examination for wbicb tbe course of instruction was to prepare bim, but tbat be notified tbe plaintiff of a desire to change to a different course and made payments on tbe contract, and tbat defendant refused to pay tbe balance due on tbe contract only after tbe plaintiff bad failed to recover in another action on a similar contract.

Tbe defendant testified tbat be was assured tbat tbe course of instruction to be given would prepare bim for passing tbe examination for tbe position be desired in tbe civil service, tbat tbe course was not calculated to so prepare bim, tbat books of instruction to be furnished under the contract were not furnished, and tbat tbe questions and criticisms upon bis papers were not sent to bim promptly, and tbat tbe payments made by bim after be bad abandoned tbe course of instruction were forced from bim by threats.

Judgment was rendered for tbe defendant upon tbe verdict of tbe jury in bis favor. After judgment bad been rendered tbe plaintiff moved to vacate tbe judgment, set aside tbe verdict, and to render judgment for tbe plaintiff, and in case of a denial of this motion tbat a new trial be granted. These motions were denied. Tbe plaintiff appealed from tbe judgment, but not from tbe orders entered after judgment refusing to grant a new trial.

Under this state of tbe record it must be assumed tbat tbe verdict is sustained by evidence. This appeal from tbe judgment does not bring for review in this court tbe orders made after judgment, and hence tbe errors alleged in tbe denial of a new trial after judgment cannot be considered. Kozik v. Czapewski, 136 Wis. 70, 116 N. W. 640.

Appellant urges upon our attention several exceptions to rulings on evidence. These we have examined, but find they refer to matters wbicb were of very slight significance and clearly bad no substantial effect on tbe verdict rendered.

It is also claimed tbat tbe court erred in tbe instructions to tbe jury, in tbat it erroneously stated tbe alleged grounds of defense in tbe obtaining of tbe contract through fraudulent representations of tbe plaintiff. An examination of all tbe instructions given tbe jury discloses tbat they cover tbe issues fully and state correctly tbe rules of law applicable thereto. Tbe withdrawal of tbe instruction pertaining to defendant’s counterclaim, upon bis suggestion tbat all right thereto was waived, did not render tbe remaining portion incorrect as to the issues submitted.

We find no reversible error in tbe record.

By the Court. — Judgment affirmed.