Nichols v. City of Superior

109 Wis. 643 | Wis. | 1901

Winslow, J.

In order to entitle this court to review findings of fact of the trial court, it is absolutely essential that exceptions thereto be incorporated in the bill of exceptions. This proposition has been so frequently announced that it seems like an affectation of learning to cite authorities. Stats. 1898, sec. 2870; Cramer v. Hanaford, 53 Wis. 85; Lederer v. Estate of Kohn, 100 Wis. 662. Nor will a paper purporting to contain exceptions, filed with the clerk and returned with the record but not incorporated in the bill, answer the purpose. Newton v. Williams, 94 Wis. 222. In the present case there is such a paper returned with the record, but it is not inserted in the bill, nor was it identified in any manner so that it can be said to have been incorporated therein. The only reference contained in the bill to any exceptions to the findings is the following recital immediately preceding the certificate: “ The court thereupon filed its findings and conclusions of law, to which findings and conclusions of law the plaintiff has filed his several exceptions, which are made part of the record, and rendered judgment in favor of the defendant for its costs and disbursements.” This recital is plainly insufficient. It does not purport to make such exceptions part of the bill, nor does it even attach or describe them so that they can, be with any certainty identified'.

The only question presented, therefore, is whether the pleadings and findings sustain the judgment. It cannot be doubted that they do sustain it. The Forrestals contracted to construct certain city improvements for certain sums, payments to be made on estimates as the work progressed; the work to be completed at specified dates, liquidated damages at so much per day to be paid in case of honeoinpletion at the specified time; the board of public works having the right, in case the work was not prosecuted with diligence, to relet the same to other parties-, or employ men and purchase material, and complete the same, and charge the cost to the contractors. After prosecuting the-work for a time, and receiving certain payments on estimates, they abandoned their contracts, certain sums being still owing them for work actually done. The board of public works completed the work partly by men in their employ and partly by contract, and in so doing necessarily expended certain sums in excess of the contract prices, the aggregate of which sums was greater than the sums still due the Forrestals for the work actually done by them. Under the contracts these sums, as well as the amounts of liquidated damages for the noncompletion of the work in the stipulated time, were proper offsets to the claims of the Forrestals. Soon after the abandonment of the work, the Forrestals assigned their claims against the city to the Bank -of West Superior, but no notice of such assignment was given to the city until September, 1896, when its offsets had accrued. These facts are not open to dispute, and they demonstrate the' correctness of the judgment.

By the Court.— Judgment affirmed.