Premier Refining Co. v. Falkenberg ( 1923 )

Eschweiler, J.

The record shows that the court placed the burden of proof on the defendant to establish by a clear and satisfactory preponderance of the evidence that the third question should be answered “Yes.” To such portion of the instruction the defendant excepted. The burden of proof was upon the plaintiff as to this question instead of upon the defendant, and were the plaintiff’s right to recover dependent upon the answer to this question, such erroneous instruction would be clearly prejudicial error. Estate of Utter, 173 Wis. 180, 183, 180 N. W. 810.

Under the evidence, however, as we view the record, there was but one issue necessary to be submitted to the jury and that was covered by the fourth question of the special verdict, answered in plaintiff’s favor by the jury and not disturbed by the trial court and for which support can be found in the evidence.. This determined as a fact that under the order requiring shipment at once, plaintiff did ship ryithin a reasonable time, and we can find no ground for disturbing such finding, approved as it was by the trial court.

The subject m;atter of the alleged misrepresentations and covered by the first three questions, as to whether or not it was stated by plaintiff’s salesman that shipment would be made from St. Paul or Minneapolis rather than from Cleveland, we deem immaterial, first, because the question as to the place from which the shipment was to be made was material only in connection with the issue covered by the fourth question, namely, whether reasonable diligence was used by plaintiff in shipping the goods; and secondly, because the defendant ought not to be heard to assert any such contention in face of the signed written order, a copy thereof being kept in defendant’s store, showing on its face that the shipment was to be from Cleveland. This was a plain and simple document, a copy preserved with ample opportunity for inspection, and defendant ought not now to be permitted, under the facts in this case, to assert as a controlling factor with him that which was contrary to the plain letter of the contract itself and which at most related to the future merely. International T. Co. v. Mabbott, 159 Wis. 423, 427, 150 N. W. 429; Standard Mfg. Co. v. Slot, 121 Wis. 14, 23, 98 N. W. 923; Gauthier v. A., T. & S. F. R. Co. 176 Wis. 245, 251, 186 N. W. 619.

Complaint is also made because no deduction for freight of the goods to^ the point of destination was made by plaintiff, the contract expressly providing that such was to be paid by it. This defense was not asserted by the answer, no testimony offered as to the amount, and defendant, having refused to accept or pay for the goods, is surely now in no position to' assert such claim:

By the Court. — Judgment affirmed.