Citation Numbers: 168 Wis. 397
Judges: Owen
Filed Date: 1/7/1919
Status: Precedential
Modified Date: 9/9/2022
The defendant seasonably requested the court to submit the following -questions to the jury: (1) Should you answer the second question “Yes,” then answer: Did defendant offer to return said engine within thirty days? (2) And if you answer said question “Yes,” then answer: Did the plaintiff induce the defendant to keep on trying said engine until it was returned ? The court refused to submit these questions, and such refusal is assigned as error.
It will be noticed that no question was submitted to the jury intended to elicit its finding upon the question of whether the failure of the defendant to return the engine within the period allowed for trial thereof was due to the inducements and representations of the plaintiff that the engine would eventually prove satisfactory. This was a material part of the defense. An affirmative finding on that fact would probably have entitled the defendant to judgment. The trial court seemed to be of the opinion that this defense was substantially negatived by the jury when they
By the Court. — Judgment reversed, and cause remanded for a new trial.