
    Duhne, Respondent, vs. Hattendorf, Appellant.
    
      October 31
    
    November 18, 1913.
    
    
      New trial: Error in charge as to damages.
    
    The evidence in this case showing that plaintiff was entitled to-substantial damages for breach of contract, the trial court properly granted a new trial after the jury — as they were told they might do by an erroneous charge of the court — re- " turned a verdict for nominal damages only.
    Appeal from an order of the circuit court for Milwaukee-county: Osoae M. Ebitz, Circuit Judge.
    
      Affirmed.
    
    
      Lawrence A. Olwell, for the appellant.
    
      Adolph Huehschmannj for the respondent.
   WiNslow, C. J.

In an action for damages for failure to^ deliver 2,300 tons of brewer’s grains the court held that a valid ,contract was shown and that it had been breached, and submitted to the jury simply the question of damages. The jury found nominal damages only, as they were told they might do-by the charge of the court. Upon motion for a new trial by the plaintiff, the trial judge on examining the evidence held that, under that part of the evidence most favorable to the defendant, the plaintiff was shown to have lost at least fifteen cents per ton on 300 tons, and hence he concluded that so-much of the charge as stated to the jury that they might return a verdict for nominal damages was prejudicially erroneous, and be thereupon set aside the verdict and granted a new trial.

Examination of the evidence shows that the trial judge was right in his conclusion as to the state of the evidence and consequently was right in granting a new trial. Other questions are argued, but we have found no prejudicial error in any of the rulings of the trial court which are before us on this appeal.

By the Court. — Order affirmed.  