98 Wis. 397 | Wis. | 1898
This is an action to recover a balance claimed to be due upon wages for twenty-three months under an express contract to pay $60 per month, and to establish and enforce a Hen therefor on certain lumber. The answer admitted the labor, but claimed that a part only was done under an express contract at $60 per month, namely, from October 6 until December 31, 1893, which had been fully paid, and that the remainder of the services from the last-named date until September 3,1895, were rendered without express contract, but simply under a general hiring upon quantum meruit; and that the reasonable value of such last-named services was only $40 per month, which had been fully paid. At the close of the trial a verdict was directed for the defendant.
We have reviewed the evidence, and are satisfied that a verdict was rightly directed. There was really no material ■ dispute as to the original hiring. The defendant had a planing mill at Cartwright, Wisconsin, andthired the plaintiff to take charge of it October 6, 1893, at $60 per month. The plaintiff himself testifies: “He [the defendant] offered nie the position of looking after his business in general at Cart
As no claim to recover upon quantum meruit was made in the original complaint, the plaintiff was in' no position to recover the reasonable value of his services, or to offer evidence upon that question, at least until by an amendment to his complaint he had laid the foundation for such a claim. This is not like the case of Beers v. Kuehn, 84 Wis. 33, where the complaint charged both express contract and an implied contract to pay the reasonable value. Here the plaintiff stood upon his averment of express contract to pay a specified sum from beginning to’ end, and affirmatively showed that the express contract was closed and paid in full.
These views render unnecessary the discussion of any other questions.
By the Gourt.— Judgment affirmed.