3 Wis. 323 | Wis. | 1854
By the Court,
This is the second time this case has come to the Supreme Court. In order fully to comprehend the principles involved in its consideration, it is necessary to trace its history. On the twentieth day of January, 1851, the plaintiff filed his declaration in the County Court of Jefferson county, in the common counts for work and labor, goods sold, <fcc., including the money counts. Tixe foundation of th enaction was work and labor performed by the plaintiff upon the flouring mill of the defendants. The plea was the general issue, with notice, that the work, if any was done, was done under a special written contract, which had been violated on the part of the plaintiff. The cause was tried at the April term, 1851, when the plaintiff obtained a verdict and judgment for $425, and costs. This judgment was removed to the Supreme Court by writ of error, and there reversed, and the cause remanded to the County Court. On the trial it seems to have become necessary for plaintiff to offer in evidence a
Under these rulings and instructions the cause was remanded, and at the December term 1853, of the County Court, a trial was again had upon the quantum meruit count, which resulted in a verdict for the plaintiff, for five hundred dollars, for which judgment was rendered, to reverse which the cause is again brought to this court
On the last trial the plaintiff abandoned all claim upon the written instrument, or upon any express contract, and relied solely upon the quantum meruit count for work and labor. Having proved the performance of the work, the construction and putting in of the water wheels, and the worth of such labor, he rested.
The defendants then called a witness who testified that he was engaged in mills until he was fifty years of age, and had helped to repair and build them; was at the mill frequently while plaintiff was putting-in the wheels ; heard the plaintiff' say that he was to put two water-wheels into the mill ; that two hundred inches of water to each wheel, were to make each run of stone grind fifteen bushels per hour; heard the plaintiff say, on the day he made a test of his wheels, that if the mill performed as he had warranted it, he was to have $500 for the job ; that the mill ran unsteadily, and made bad flour with plaintiff’s wheels ; before his wheels were put in it made good flour; that the reputation of the mill was greatly injured; that the former wheels drew four bum
This testimony seems to have been received with-J . out objection. The defendant then asked the witness the following questions:
“Were the defendants benefited or injured, in view of all the facts, by the work of the plaintiff?” which was objected to by the plaintiff’s counsel, and the objection was sustained, and exceptions taken.
If the grounds of the objection were, that the question called for the opinion of the witness, or that it was not a proper question to be put to the witness as an expert, there may be some doubt as to its correctness. But we are inclined to think that the witness had showed himself sufficiently expert in the milling business to admit of an examination properly addressed to persons of skill in that department of industry, and therefore competent to give an opinion upon matters of which the jury could not be expected to judge accurately from the mere detail of facts-But if the ground of the objection was, that it was not pertinent to the issue, we think the ground untenable. The quantum meruit in this case did not depend merely upon the amount of labor bestowed upon the job, or the mere mechanical skill in its execution, or the ordinary value of a piece of work constructed as that was, or the cost of its construction at the time and place. All these are very proper to be considered, in the estimate to be made. But the object and design of the work, the inducements to its undertaking, its adaptation, when completed, to the end in contemplation in its engagement, are all proper to be proved under this issue. ' The inquiry is as well, how much the defendant ought to pay, as, how much the
“ Where the claim is upon a quantum meruit, the defendant may, without notice, reduce the damages,
We think, therefore that the evidence of this kind several times offered and rejected, ought to have been allowed.
The next question presented is one of much difficulty. The Supreme Court, in this very case, had decided the written instrument executed by the par ties, to be “ wholly void? That decision was the law of the case, and must be held res adjudicata. Having failed to make any valid written contract, was it competent for the defendant to fall back upon the par.ol understanding and agreement between rhe parties ? It is objected by tho plaintiff below, that this would be allowing the introduction of parol proof to explain a written instrument, and would be making a new contract between the parties. On the part of the defendants below, it is insisted, that the written instrument having been declared wholly void, the parties, are in the same condition as though they had not attempted to reduce their parol agreement to writing.
It is undoubtedly time that an instrument wholly void is of no force or validity. It is equally true that parol evidence is inadmissible to explain a latent ambignity in a written contract. If the ambiguity is so great that its meaning cannot be ascertained from the instrument itself, it becomes void for uncertainty and paral proof cannot be resorted to, to give it force and validity. The parties can no longer resort
It would certainly be very unjust to allow the plaintiff to throw aside the contract on his part, and to prove the performance of the work and its cost or value, and shut the defendant out from showing the inducements held out by the plaintiff, and the improvements promised, without which the defendants might never have subjected themselves to the inconvenience: and loss of time inseparable from the performance of the work. My chimney smokes, and a mechanic represents that he understands the difficulty, and for a certain price he undertakes to build me a chimney not only free from such defect, but which will consume less fuel and impart more heat. We reduce our agreement to writing ; my chimney is torn down, my house disordered, and the result is,
But it may be said that without the written instrument, there is no evidence of the consummation of a contract; that the minds met at the execution, and until such execution there was no such meeting or agreement of minds as is essential to a contract. This may be so in some instances, and admitting it to be so in all, then the parties fall back upon the contract which the law implies for them under all the circumstances of the transaction between them, and the plaintiff may then show by parol, the nature and amount of the work and its value, and the defend ant may also show all the facts and circumstances of the undertaking, the representations made of the nature and quality and usefulness of the work, and its failure, if any, to answer the purposes for which it was intended, and from all the facts and circumstances, the law implies the contract, and requires the defendant to pay the plaintiff so much as he reasonably deserves to have. It is upon such contract that the plaintiff seeks to recover, and whether or not it was competent for the defendant to set np and prove a, special contract by parol, we think the offer of defendant of the evidence proposed to be proved by the witness Carr and others, was competent and pertinent to the issue which the plaintiff himself h ad sought. It did not propose to explain or amend a written com
We do not undertake to say whether the late Supreme Court decided right or wrong upon the case made and presented to them; whether the written instrument ought to have been declared wholly void or not, or whether it was too ambiguous to be carried into execution ; but that court having so decided in this very case, that decision became thereby the law of the case, by which the parties were bound. Such being the condition of the parties, they were left, each to pursue their rights as though there had never been any written instrument between them.
The views here expressed render it unnecessary to examine the exceptions in detail. The judgment of the court below must be reversed, and the cause remanded for a new trial.
Judgment reversed.