192 Wis. 168 | Wis. | 1927
The defendant La Belle View Corporation in the spring of 1923 was the owner of a large country home in the city of Oconomowoc, which it desired to rebuild and convert into a number of flats, and with this object in view one Kersten, who was one of defendant’s principal officers and its principal stockholder, negotiated with the plaintiffs, who are carpenter contractors, to do the rebuilding. Plaintiffs submitted estimates of the probable cost, and apparently were willing to do the work and to furnish the necessary materials, either pursuant to a definite, fixed contract or on the basis of ninety cents per hour for labor, and the cost of material, plus ten per cent. The plaintiffs allege in their complaint that the latter was the plan agreed upon, and that under such plan the balance named in the complaint is due.
There is ample evidence in the record to support the findings of the referee, which were also adopted by the court, and the judgment cannot therefore be disturbed on that point. It is sufficient here to say that the books of the plaintiffs on this particular job were kept upon the basis of a cost-plus percentage agreement as to material, and a definite price to be charged for labor. There is also ample testimony that in every instance where a contract is accepted for a definite sum such a contract is entered by the plaintiffs in a special hook kept for that purpose, and that the estimate book of the plaintiffs did not show the entry of such a contract. Furthermore, it appears from the evidence that while plaintiffs were engaged in the work of remodeling and reconstructing this country home the defendant furnished labor to assist in part in such work, without making any charge whatsoever to the plaintiffs therefor, conclusively showing its object to be the diminution of the cost. Aside from this, there was direct testimony to the effect that the cost-plus percentage and definite cost for labor per hour plan was adopted.
Under the agreement as found by the referee and as adopted by the court the labor furnished by the .plaintiffs was to be paid for at the rate of ninety cents per hour. The defendant contended that, assuming that the agreement was as claimed by the plaintiffs, such agreement called for experienced and skilled labor, and inasmuch as two of plaintiffs’ employees engaged upon the job were apprentices, their labor should not have been charged at the regular rate, but at the rate ordinarily paid for such apprentices. One of these apprentices had had considerable experience in the carpenter trade, and there is evidence in the record to the effect
Upon the completion of the work a specified bill was rendered to the defendant in the month of September, 1923. Such statement was accepted by the defendant, and no objection was raised thereto until shortly before the commence
While there is some dispute in the evidence upon what occurred at this meeting, we are satisfied that the evidence preponderates in favor of the plaintiffs in that behalf; at any rate, the referee having found an account stated under all the evidence, and the court having adopted such finding, it certainly cannot be said that it is contrary to the clear preponderance of the evidence.
“An account stated is an agreement between persons who have had previous transactions, fixing the amount due in re
“To make an account stated there must be a mutual agreement between the parties as to the allowance or disallowance of their respective claims; and to establish such an account so as to preclude a party from impeaching it, say for fraud or mistake, there must be proof of assent to the account as rendered, either express or implied from failure to object within a reasonable time after presentation.” 1 Am. & Eng. Ency. of Law (1st ed.) 113.
In this case we have, therefore, a bill rendered in September; no objections to the bill until some time after February of the following year; besides, a recognition of the correctness of the account in February and a promise to pay the same. In other words, we have a full account stated. This account stated establishes the plaintiffs’ claim presumptively, and the presumption cannot be overcome unless fraud Qr mistake is shown.
The defendant in part attempted to impeach this account upon the theory that the plaintiffs did not credit the defendant with a five per cent, discount alleged to have been received by the plaintiffs from the lumber company from which they purchased the lumber. The evidence, however, does not disclose to any degree of satisfaction that such five per cent, discount was actually received. Therefore the account was not impeached, excepting as hereinafter mentioned.
The account, however, contained a conceded clerical error, which resulted ih an overcharge of $9.08 in favor of the plaintiffs. This amount should be allowed to the defendant on the account as stated, but such clerical error does not affect the balance of the account. 1 Am. & Eng. Ency. of Law (1st ed.) 127, and cases cited in note.
We therefore conclude, first, that the account stated as alleged, with the exception noted, must stand; and second,
By the Court. — The judgment of the lower court is modified as indicated in the opinion, and as modified is affirmed, with costs to respondents.