11 Wis. 138 | Wis. | 1860
This action was brought to recover a balance claimed on a contract for building a house, and to enforce a mechanic’s lien thereon. It was by stipulation referred to a referee to try and decide all the issues in this case. It was tried before him, and he decided in favor of the plaintiffs, and reported the facts and conclusions of law found by him. Upon his report the plaintiffs moved for judgment, and the defendant moved to set aside or modify the report, and the court made an order setting aside the report and all proceedings before the referee, at the plaintiffs’ costs, and referring it back for a new trial, with leave to the plaintiffs to amend on payment of costs. The reason given for this order, as stated by counsel, though it does not expressly appear of record, was, that no contract was set out in the complaint, and that therefore the evidence before the referee had been improperly admitted.
If the order had simply granted or refused judgment on the report, alleging any particular reason therefor, it would, on an appeal, have been necessary for this court to look at the whole case to see whether the order was really correct or not, without reference to the reason assigned. But it seems evident that here the order appealed from can only be justified by the existence of the very reason which it is said the court gave for it. The plaintiffs did not ask for a new trial, nor for leave to amend, but insisted on his right to judgment on the report. If the referee had committeed any error by which the defendant was entitled to have the report set aside, such error not growing out of any fault in the plaintiffs’ pleadings, certainly the plaintiffs ought not, on granting a new trial for such reason, to have been required to pay all the costs of the former trial, but they should have been left to abide the event. And it is evident from the orders granting leave to the plaint-tiffs to amend on the payment of the costs, that it was made upon the idea that none of the plaintiffs’ evidence had been
The power given to the court on reviewing the report of a referee, by sec. 23, chap. 132, R. S., 1858, is very ample, and places the court in the same position as the referee, with reference to the whole questions, both of fact and law; except that he is to decide upon the return. This section is quite different from that in the New York Code upon this subject, and their decisions upon the matters which the court will review on the report of a ^referee are inapplicable here. If, therefore, the plaintiff’s complaint stated no cause of action, sufficiently to admit the evidence, the objection to the evidence should have been sustained, the report altered accordingly, and judgment given thereon for the defendant, unless the plaintiffs asked leave to amend, and then the terms imposed would have been proper. Lyon vs. Blossom, 4 Duer, 318.
It is nesessary, therefore, to determine whether the complaint was sufficient. It sets forth the building contract entire, but does not show either as an exhibit or otherwise, the plan and specifications referred to in the contract. This was the chief objection urged against it. On the trial before the referee, the plaintiffs offered in evidence the contract, with the plan and specifications annexed, which was objected to for the reason that the plan and specifications were not sufficiently described in the complaint. The objection was overruled and exception taken. The plaintiffs also showed by parol that the plan and specifications annexed to the contract were the ones referred to in it, and upon which the house was built. This also was objected to and exception taken.
The question then is, whether, in a complaint on a building contract, it is necessary to set forth the plans and specifications mentioned in it, in order to authorize their admission
These considerations lead to the conclusion, that these plans and specifications, although referred to in the contract, and being so much a part of it, that they are material to be known in order to determine what it requires, arc yet, from their very nature, so far incapable of being inserted in the pleadings, that it must be held sufficient to refer to them as the parties refer to them in the contract, leaving their identity, in case of dispute, to be established by parol evidence.
Contracts may easily be imagined, under which such evidence would be absolutely essential. Thus, if one should contract to build a house, or a machine, or any thing else, like some other thing of the same kind then in existence, the pleader, from necessity, could only allege that he had built it like the other referred to. If there was a dispute as to what was referred to, it must be established by parol evidence. And even after established, the form, size, and characteristics of the thing itself, would also have to be shown by parol. This results from the very nature of the case. And although plans and specifications are capable of being intro
No case was cited in which the point has been decided, and after diligent search, we have been unable to find any. But in the forms given in 2 Chitty’s PI., 332 and 331, this mode of declaring is used. In one form the language is “ agreeably to certain plans thereof, then in the possession of the defendant.” In the other it is, “agreeably to certain plans and particulars then and there made and agreed upon by and between said plaintiff and defendant,” &c. And it seems to us to come fully within the spirit and intent of the rule which is thus stated in Yan Santvoord’s PI., 333; “when a subject comprehends a multiplicity of matters it is not necessary to set them forth in detail, but where great prolixity would be avoided, or the allegation on the other side must reduce the matter to a certainty, a general mode of pleading is allowed.”
And under the old practice the plaintiffs might have re
But we think, further, that if there was any objection to the complaint in this respect, it was only for want of sufficient certainty, and that the only remedy of the defendant was to move to make it more definite and certain. And he could not, as he did, answer that the plaintiffs did not perform “ according to the plans and specifications mentioned,” implying that he had full knowledge what they were, and then raised this objection on the trial.
There was one other objection urged, which was that the evidence offered to show a change in the roof by the agreement of the parties, and the completion of the roof according to the new agreement, was inadmissible, under the complaint which averred performance of the original agreement. The case of Colt vs. Miller, 10 Cush., 49, and Smith vs. Brown, 17 Barb., 431, would seem to sustain this objection. But
We are, therefore, of the opinion that the order appealed from must be reversed, and that the circuit- court should proceed to give judgment on the report, as the law and evidence may require.
The order is reversed, with costs, and the cause remanded for further proceedings.