#### W. H. Shenners Company, Respondent, vs. Delzer, Appellant.

*May 29*

June *25, 1919.*

*Brokers: Contract for commissions: Trial: Correction of verdict to conform to proof: Appeal: Errors assigned and argued: Review : Credibility of witnesses.*

1. On appeal to this court, generally only errors assigned and argued in the brief will be considered.

2. Where in an action by a broker for commissions for securing an exchange of property for defendant the defense was fraud in securing the contract, and a single witness for the plaintiff . testified that defendant read the contract before he signed it, and the jury, as triers of the fact, evidently believed the witness, a general verdict for plaintiff cannot be said not to be based on competent credible evidence.

3. The jury could not properly ignore in their verdict the terms of a valid contract between the parties.

4. Where there was no conflict in the evidence on the subject of damages from defendant’s breach of contract to pay plaintiff a commission, the court properly corrected the amount of the verdict to conform to the proof.

Appeal from a judgment of the circuit court for Milwaukee county: John J. Gregory, Circuit Judge.

*Affirmed.*

Action begun in the civil court of Milwaukee county to recover $200 as commission for securing an exchange of property for defendant under a written contract therefor, and $30 the cost of an abstract which defendant was to furnish and which plaintiff caused to be prepared. The defense was that the written contract was procured by fraud. There was evidence to the effect that the actual cost of the abstract was only $21.

The jury by a general verdict found for plaintiff and assessed its damages at the sum of $66.67. Plaintiff’s motion to amend the verdict by inserting as damages the sum of $221 instead of $66.67 was granted and judgment for plaintiff was entered accordingly. Upon defendant’s appeal to the circuit court the judgment of the civil court was affirmed, and the defendant appealed.

*508The cause was submitted for the appellant on the brief of *Adolph Kanneberg*of Milwaukee, and for the respondent on that of *A. A. Cooper*of Milwaukee.

Vinje, J.

The case was submitted by both parties without oral argument. Appellant assigns a number of errors that are not argued in his brief. Generally only those argued will be considered. *My Laundry Co. v. Schmeling,*129 Wis. 597, 109 N. W. 540; *Sherwood v. Hulett,*134 Wis. 561, 114 N.W. 1111.

The gist of the defense was fraud in securing the written contract, and it is contended that the witness for plaintiff who testified to the making of the contract and that defendant read it before he signed is not worthy of belief. The jury evidently did believe him and they were triers of the fact. We cannot say that' their finding in favor of plaintiff is not based upon competent credible evidence.

Since the general finding in favor of plaintiff negatives fraud and must be sustained, and since the court instructed the jury that in the absence of fraud the defendant must be held to have accepted the plaintiff’s offer, the argument that the jury intended to give the plaintiff only a liberal allowance for its services and disbursements in procuring an abstract and nothing for commission fails. The jury could not properly ignore the terms of a valid contract between the parties. How the mistake in the verdict occurred we do not know and it is idle to speculate upon the matter. But since there was no conflict in the evidence upon the subject of damages, placing the cost of the abstract at $21, the court properly corrected the amount thereof to conform to the proof. *Schweitzer v. Connor,*57 Wis. 177, 14 N. W. 922; *Schweickhart v. Stuewe,*75 Wis. 157 (43 N. W. 722) and cases cited on page 160.

*By the Court.*— Judgment affirmed.