#### Laville vs. Lucas.

A decision of the circuit court overruling a motion made for a new trial, on the ground that the verdict was contrary to the evidence, will not be disturbed unless there was a total want of evidence to support the verdict.

Where there is no evidence on which the verdict can rest, the denial of a motion for a new trial is such an abuse of discretion on the part of the circuit court as would be corrected in this court; otherwise, the verdict must stand.

APPEAL from tbe Circuit Court for *Washington*County.

Tbe case is stated in tbe opinion of tbe court.

*A. L.*Frisby, for appellant.

*Thorp & Shelley*and *Fdmund Neff,*for. respondent,

cited *Van Valhenburgh vs. Hoshins,*7 Wis., 496; *Barnes vs. Mer-rich,*6 id., 57.

May 15.

*By the Court,*

DixoN, C. J.

This is an action to recover for work and services performed by tbe respondent as a millwright and machinist. Tbe defense is, that tbe appellant, being ignorant of such matters, and confiding in tbe skill and experience of tbe respondent, was induced to make tbe contract and give the employment by means of tbe representations of tbe latter as to tbe existence and nature of tbe water power to which tbe machinery was to be applied, and tbe fitness and adaptation of tbe machinery to tbe purposes intended; and that tbe representations were false and .un-*618^oi;in<^e(^ an<^ sei’vices of the respondent of no .value. The testimony was conflicting, and the case went to the jury without exceptions either as to the evidence received or the instructions given. Under the charge, which was given as requested by the appellant, and can by no means be considered as unfavorable to him, the jury found a verdict for the respondent, and assessed his damages at something less than half the sum claimed. The appellant moved for a new trial, because the verdict was contrary to the evidence and to the instructions given. The court denied the motion, and the appellant excepted, and took this appeal. In such cases the rule is well settled, that the decision will not be disturbed, unless there is a total want of evidence to support the verdict If there be no evidence upon which the verdict may rest, then it is such an abuse of discretion on the part of the circuit court as will be corrected in this; otherwise, the verdict must stand. The respondent was examined as a witness in his own behalf, and his testimony, if believed, is sufficient to sustain the verdict. It is true, that he admits saying to the appellant, that, in his opinion, the stream would afford sufficient power to drive the wheel; and he says that such was then his belief. But he denies that the appellant acted upon his advice alone, and that he was thereby induced to make the purchase and enter into the undertaking. On the contrary, if we credit him — and of that the jury were the judges — the appellant acted quite as much upon his own judgment as upon that of others. If this was so, the defense in that particular was not sustained. Upon the other points the evidence was more conflicting and more doubtful, and they need not, therefore, be considered.

The verdict not being entirely unsupported by the evidence, the order of the circuit court is affirmed.