70 Wis. 569 | Wis. | 1888
Several errors are alleged as grounds for a reversal of the judgment herein. These will be stated and considered in their order.
1. On motion of the defendant the jury was sent to view the premises. The judge of the court did not accompany the jury, and was not asked to do so. On authority of Fraedrich v. Flieth, 64 Wis. 184, counsel for plaintiff claims that the failure of the judge to make the view is error. True, we said in that case that “ a view by a jury called in
2. The plaintiff offered in evidence some document purporting to contain the testimony of the defendant Maren Larsen given on a former trial, but the court sustained an objection thereto. He was allowed, however, to prove by oral testimony what she testified to on that occasion. The testimony seems to have been offered for the purpose of showing that Hans Larsen was her agent in making the contract in question with the plaintiff, which contract he signed in his own name. It is an undisputed fact in the case that he was her agent, and negotiated and signed the contract as such. The court ruled correctly, but had the ruling been erroneous it could not have harmed the plaintiff.
3. It is objected that when the nonsuit was granted as
4. The objections that the special verdict does not cover all the material issues in the case, that it is not responsive to the questions submitted, that it is evasive and contradictory, and that portions of it are unsupported by the testimony, we think are not well taken. If there is anything uncertain in the first finding, to wit, that the contract was as claimed by the defendant, it may be made certain by reference to the answer of Hans Larsen, which states the defendant’s claim in that behalf. Although a nonsuit was ordered as to him, yet his answer remains in the record, and may be referred to in explanation of the verdict. Conceding, as is claimed, that there is an item of three dollars for extra work, concerning which there was no agreement that it should not be due until'the contract was completed, still we cannot, for that reason, disturb the special finding. The sum is too trifling. JDe minimis non curat lex. We are further of the opinion that the special verdict covers all the material issues litigated on the trial; that it is sustained by the evidence; and that under it the defendant is entitled' to judgment.
5. The plaintiff having failed to perform his contract, and the defendant’s liability for the amount claimed in this action depending upon such performance, the defendant not having accepted the building, it is clear that the plaintiff cannot recover quantum meruit.
The foregoing remarks dispose of all the alleged errors deemed worthy of notice. None of the errors are well alleged.
By the Court.— The judgment of the county court is affirmed.