#### Wheeler, Respondent, vs. Seamans, Appellant.

*December 15, 1904*

January *10, 1905*

*Trial: Directing verdict: Appeal and error: Exceptions, when properly taken: Compromise and settlement: Mutual mistaker Evidence.*

1. Where the court directs a verdict, a- motion for a new trial is-not necessary to permit the appellate court to consider whether the evidence supports the verdict.

2. An exception should he taken to the effective act of the court, and not to a mere expression of opinion preliminary thereto.

3. The record on appeal showed that the trial judge, in declaring *•'*his views on a motion for direction of a verdict, closed with the announcement that he found no evidence which would warrant a submission of the case to the jury, at which point the record stated: “To which ruling the defendant then and there duly excepted.” This was followed _ by a formal statement from the court to the jury, the direction of a verdict, and' direction to one of the jurymen to sign it as foreman. No further exception appeared. *Held,*that the exception taken, though interpolated before the effective ruling of the court, should be deemed to apply to the act of directing the verdict..

4. In an action on a due bill given in settlement of partnership accounts, the evidence, stated in the opinion, is *held*to sustain the claim that the settlement was based on a mutual mistake-as to conceded liability.

Atteal from a judgment of the circuit court' for Sauk county: E. Rat Stevens, Circuit Judge.:

*Reversed.*

Some time prior to April, 1903, plaintiff witbdirew from, partnership with the defendant in a newspaper and printing, *574business, leaving in the latter’s hands a considerable amount ■of current ledger accounts, subject to offset and uncertainty .■as to collectibility, and also about $228 of so-called directory ■accounts, due for advertisements to be inserted in a directory which the firm had in process of issue. As to the latter, it was agreed that plaintiff should receive one fourth; the defendant being to the work of completing the issue of the directory and 'Collecting. As to the general ledger accounts, they were understood to belong equally to both, subject to any indebtedness of .the firm. Defendant collected, and from time to1 time divided with plaintiff, the proceeds of general accounts, until about April 4, 1903, when plaintiff again inquired what moneys had been received, and the parties met at defendant’s office to .go over the accounts. It was found that the defendant had •collected $60.68 of ledger accounts, above certain bills paid, leaving uncollected accounts of about $149, of uncertain value, and involved by unknown offsets; also directory accounts aggregating $176.90, of which the plaintiff’s share would be $44.20. " As to his right to one half of the $60.68 and the whole of the $44.22, there was no question. Thereupon plaintiff proposed that defendant buy him out, and, after some chaffering, defendant offered to give him $125 in full settlement of all the plaintiff’s rights in the accounts of both classes, which plaintiff accepted, whereupon defendant gave a duebill for that amount. This action was brought, based upon the settlement and the duebill. Defendant ■claimed a mistake, in that, before proceeding to negotiate as to a gross price for purchase, it was mistakenly assumed by him, to the knowledge of the plaintiff, that the conceded 'indebtedness consisted of $60.68 and $44.22, or a total of $104.90. This was denied by plaintiff, and, after a trial to ■a jury, the court directed a verdict in favor of the plaintiff for the amount of the duebill, less the conceded sum of $94.69, which the defendant had paid him, viz., $30.31. There was *575no motion for a new trial, and judgment was entered in accordance -with this verdict, from which the defendant appeals.

Eor the appellant there was a brief by *Ed. G. Got try*and *G. Stevens,*and oral argument by *Mr. Gottry.*

Eor the respondent there was a brief by Grotophorst, *Evans ■&*Thomas, and oral argument by *E. A. Evans.*

Dodge, J.

Respondent urges that we cannot consider whether the evidence supports the verdict, for the reason that no motion for new trial was made. In this counsel labor under a misconception. We have no occasion to consider whether the verdict is supported, but whether the ruling of the court directing such verdict was right or wrong. Since that direction can be proper only in case there was no evidence which, if believed by the jury, might have supported a different verdict, its correctness can be established only by •examining the evidence, to the extent, at least, of ascertaining whether there was any to the contrary. If so, the ruling is error, though there be abundant evidence to support tho verdict if it had been rendered by the jury. Such ruling made in course of the trial can, of course, be reviewed, if exception to it be preserved, and it, with the exception, be brought into the record by bill of exceptions.

It is further urged, however, that no exception was taken to the direction of a verdict. This, if true, would certainly be fatal. *Holum v. C., M. & St. P. R. Co.*80 Wis. 299-303, 50 N. W. 99. We find some support for this contention. Upon plaintiff’s motion for such direction, the court declared his views as to the rules of law governing him thereon, and as to the evidence; closing with the announcement that he •could find none to show mistake on defendant’s part which would warrant a submission, of the case to the jury. “To which ruling the defendant then and there duly excepted,” ••says the record. The court continued, by a formal statement, *576tbat be found no evidence to warrant submission of tbe case to tbe jury, and tbat it became bis duty to direct a verdict for plaintiff, whereupon be directed one of tbe jury to sign sucb verdict as foreman. No further exception appears. This-presents very much tbe appearance of a, failure to except to tbe only act which could prejudice tbe defendant, namely,, tbe direction of a verdict. A mere academic discussion and expression of opinion by the court is not prejudicial, save as it might mislead tbe juiy. It is only where tbat opinion is carried into effect, as by admitting evidence, or, as here, in-directing a verdict in pursuance of it, tbat a party’s rights, suffer. Strictly, tbe exception should be taken to tbat effective act, and not to- tbe mere expression of opinion. In the-present instance, however, tbe conduct of tbe trial court in expressing bis reasons and giving tbe resulting direction were-so continuous — so all one act — that, with some hesitation, we bold tbat this exception, though interpolated before full consummation, must be deemed to apply to tbe act itself. We-think it must have been so understood by tbe trial judge and opposing counsel, so tbat it served to notify tbe former tbat appellant protested tbe act as erroneous, so as to give opportunity for correction, and also notified him tbat appellant intended to preserve bis right to challenge tbat act on appeal. These are tbe real, practical purposes of noting an exception. We conclude, therefore, tbat tbe merits of this ruling are before us for review.

Turning to defendant’s testimony, we find him to declare-tbat, after ascertaining first tbat tbe total ledger collections were $60.68, tbat figure was set down by each on tbe sheet on which tbe list of sucb collections bad been set down and' added up. Thereupon, on another sheet, were put down tbe various directory accounts collected; total of $176.90' reached; tbat divided by 4, and tbe result, $44.22, as plaintiff’s share, found;-then carried to first sheet, and added to tbe $60.68; making total of $104.90. Tbat, of course, on its face. *577was a blunder, for only half of the $60.68 should have been added to the $44.22. At this stage plaintiff asked defendant to make him an offer to buy out all his interest, and, after some offers by plaintiff, defendant said, “Let’s see what I owe in cash first,” and one or the other said,-“There is $60.68 and $44.22 cash collected; that amounts to $104.90.” “It was said I owed him $104.90. We both figured I owed him $104.90.” Thereupon defendant offered $125, which plaintiff accepted. This is in large measure contradicted by plaintiff, but receives some confirmation from the sheets of papel-ón which plaintiff made figures at that time, which shows the figures “$60.68” and “$44.22” brought together on. the first sheet and added together. Upon another sheet, whereon was made a list of the uncollected accounts, which were the only subject of compromise, there appears the total $104.90, with the words “due me”; thus indicating clearly that such erroneous total of conceded indebtedness was during the negotiation adopted by plaintiff. This evidence clearly tends to show that the offer of $125 by defendant was made upon the mistaken assumption that his conceded liability ivas $104.90, instead of $Y4.56, and that plaintiff knew it. That plaintiff also supposed the former to be the correct figure, is indicated by his entry of such fact at the time as above stated, so that the evidence tends also to show mutuality of the mistake. It hardly lies in plaintiff’s mouth to ask a court to indulge in a presumption that, instead of being mistaken, he was guilty of a fraud, in knowingly allowing defendant to make the settlement, by mistake, upon a wrong basis. The conclusion is obvious that the case should have been submitted to the jury, and error w-as committed in directing verdict for plaintiff.

*By the Oourt.*— Judgment reversed, and cause remanded for a new trial.