General Die & Stamping Corp. v. Bolens ( 1931 )

Wickhem, J.

The only dispute in the evidence relates to the terms of the agreement between the parties. There was no issue upon the amount of labor and materials furnished, and plaintiff was clearly entitled to a verdict for $729.97 or nothing. Hence, there is no basis in the evidence for the jury’s conclusion that $227 remained due to the plaintiff. Under these circumstances the case is governed by the decision of this court in New Home S. M. Co. v. Simon, 107 Wis. 368, 83 N. W. 649. In that case the plaintiff was either entitled to a verdict for the full amount of his claim or to nothing. The jury found for the plaintiff, and set the damages at a sum less than plaintiff was entitled to. The court said:

“If plaintiff was entitled to a verdict, the amount of it was susceptible of being determined with mathematical accuracy. A verdict showing that the evidence, and the law as given by the court, were wholly disregarded by the jury as to an essential fact of the case, leaves it doubtful whether they considered and decided, upon the evidence, as to any question upon which defendant’s liability depended.”

The verdict in this case raises the same doubt as to whether the sole issue was decided upon the evidence, and while there was not here, as there was in the case just cited, a motion for new trial by' either of the parties, it appears probable that justice has not been done, and it is concluded that a new trial should be ordered as provided by sec. 251.09, Stats. Koss v. A. Geo. Schulz Co. 195 Wis. 243, 218 N. W. 175.

By the Court. — Judgment reversed, and cause remanded with directions to grant a new trial.