Wisconsin Reports (Volume 155)

This historic book may have numerous typos, missing text or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1914. Not illustrated. Excerpt: ... Pennsylvania Coal & Supply Co. v. Schmidt, 155 Wis. 242. was sold to the defendant by the Mueller Fuel & Supply Company, acting as agent for the plaintiff. Defendant was then permitted to amend his answer, and he set up the defense that he bought the coal from the Mueller Fuel & Supply Company, not knowing that the plaintiff was the owner thereof, and that he had a setoff against the former; that plaintiff permitted said company to hold itself out as the owner of the coal, and that therefore it was estopped from maintaining the action. The trial court submitted a special verdict of two questions. The first question was: Did the defendant at the time he purchased the coal in question know that the Mueller Fuel & Supply Company was acting as agent for plaintiff? The second question was: Ought the defendant in the exercise of ordinary care to have known that the Mueller Fuel & Supply Company was, at the time he purchased the coal in question, acting as agent of plaintiff? The court instructed the jury that the burden of proof as to both questions was upon the plaintiff, and the answer returned by the jury to each question was No. The plaintiff appealed to the circuit court, and it granted a new trial in said court on the ground that the civil court erred in charging the jury that the burden of proof as to the questions submitted was upon the plaintiff. From an order granting such new trial the defendant appealed. 8. W. Dalberg, for the appellant. For the respondent the cause was submitted on a brief signed by Nath. Pereles & Sons, attorneys, and Alex. L. Strouse and Daniel W. Sullivan, of counsel. Vinje, J. The defendant claims that the circuit court erred (1) in reversing the judgment; (2) in ordering a new trial by jury in the circuit court; and (3) in ordering d...