Shipman v. State

44 Wis. 458 | Wis. | 1878

Colb, J.

I. The only material question to be considered on the motion for judgment on the special verdict is the one which relates to interest. On the argument, the learned attorney general discussed some questions in regard to the rulings of the circuit court on the trial, admitting or excluding evidence. But as no bill of exceptions was settled, as there should be (Calkins v. The State, 13 Wis., 389) to present these rulings to this court for review, they cannot be considered. 'In respect to the claim remaining due and unpaid under the contract for plans, specifications and services as superintendent, there is no difficulty as to what interest should be allowed. The contract fixed five per cent, on the cost of construction as,the amount of compensation for this entire service. The jury found that there was due the plaintiff, when discharged as superintendent, on this basis, the sum of $1,100.47. Interest should be allowed on that sum from the time of the plaintiff’s discharge, because the amount due him was capable of being ascertained by computation. Upon the facts, therefore, we think it a violation of no sound principle to allow interest on this item or claim as above indicated.

II. The jury found the fair value of the plans, specifications and working drawings furnished by "the plaintiff for the south wing, to be three per cent, on the cost of construction, and that, without interest, this claim amounted to $5,100. It is insisted by plaintiff’s counsel that this sum should cai’ry interest from the time the south wdng was completed, because the amount due was capable of being ascertained, and the plaintiff had presented his claim to the legislature, and payment thereof was not made. On the demurrer to the complaint, it was decided that the plaintiff could recover the value of his plans and specifications for the work which he did not superintend, on a quantum meruit. 42 Wis., 377. But this demand was an unliquidated one, and the value of the services for furnishing plans and specifications could only be ascertained upon proof, or the testimony of architects. Within the doctrine laid down in Marsh v. Fraser, 37 Wis., 149, this claim would not carry interest. In that case, an action was brought upon an open and unliquidated account for goods and services, where no account had been rendered and no demand of payment made. It was decided that the account did not carry interest, in the absence of an agreement for interest. The principle of that case is decisive of the question of interest in respect to the claim we are considering. Nut it was said that, when the plaintiff applied to the legislature for payment of this demand, it was the duty of that body to ascertain the amount due him, and pay it. The same remark might be made, with equal propriety, with respect to any debtor: that he ought to adopt means to ascertain the amount he owes his creditor, and pay it. But as between individuals, the better rule of law is, that when the right of the party to recover his compensation under the contract is doubtful, and is contested on reasonable grounds, and the amount due him requires to be adjusted by proceedings in the suit, interest is only recoverable after the right of the party to recover, and the amount of the recovery, have been determined. The Isaac Newton, 1 Abb. Adm. B., 588. We see no reason why the same rule should not be applied here. Besides, it must be borne in mind that not only was the right of the plaintiff to recover this demand contested, but the plaintiff claimed of the legislature five per cent, on the cost of constructing the south wing. In other words, he demanded more than his services were worth as found by the jury, and for that reason, also, interest on this claim should only be allowed from the time of the verdict.

III. As to the claim for printing mentioned in the second cause of action, the jury found that this expense was incurred at the request of the building commissioners and board of trustees. Of course the plaintiff should recover what the printing cost. This seems too plain for argument.

IY. The facts found in respect to the third cause of action amply sustain the plaintiff’s right of recovery on that claim. That was for services in furnishing a plan of the grounds for surface drainage, roadways, etc. The value of this service is not disputed; but it is objected by the attorney general, that the board collectively did not order this work. But the facts found, show that the board, at a regular meeting, adopted the plan, and ordered the plaintiff to enter into a contract for carrying it out, which was done. This surely amounted to a full ratification and adoption of the plan by the board.

By the Court. — Judgment will be entered on the special verdict for the amount found due the plaintiff according to this opinion.