Spafford v. McNally

130 Wis. 537 | Wis. | 1907

Cassoday, C. J.

The right to a mechanic’s lien on real estate is given by the statutes (ch. 143, R. S. 1878 and Stats. 1898). By the Eevision of 18TS any issue of fact in such an action was, “on demand of either party,” triable “by a jury, whose verdict thereon” was thereby made “conclusive-as in other cases.” Sec. 3323, R. S. 1878. In the case at bar the defendant insists that he was entitled to a jury trial. In making such contention counsel seem to have overlooked the amendment whereby that section of the statutes is made to declare that “such actions shall be deemed equitable and any issue of fact therein may be referred by the court as in other cases.” Ch. 80, Laws of 1897, and sec. 3323, Stats. 1898. Even prior- to that amendment such actions were held to be “suits in equity, with the added feature” in respect to-a jury trial and the effect of a verdict. Charles Baumbach Co. v. Laube, 99 Wis. 171, 176, 74 N. W. 96; Siebrecht v. Hogan, 99 Wis. 437, 440, 441, 75 N. W. 71. By the amendment mentioned the right to a jury trial on demand, and the effect of a verdict therein, were eliminated. This action, being equitable in its nature, was, by virtue of the amendment mentioned, triable by the court without a jury. Being triable by the court without a jury, reversible error cannot be predicated upon the improper admission of testimony. As indicated in the statement of facts, the answer expressly admits, as alleged in the complaint, the making of the agreement upon which the action is based, the building of the two chimneys, and the putting on of the first two coats of plaster. In fact, the answer substantially admits that the plaintiff fully performed such contract on his part, except he had not put on the third coat of hard-finish plaster. If it be claimed that such full performance is not so admitted, still it is certainly so found by the court, and there is plenty of evidence to support such findings. The answer alleges the failure to put on the third coat- of hard-finish plaster as a breach of contract on the part of the plaintiff. To the contrary the complaint alleges, and the court found in effect, that the plaintiff was at the building with his helper, ready, willing, and with the material fully prepared to put on such third coat of hard-finish plaster, and when about to proceed to do the same, pursuant to the contract, the defendant, without cause, refused to allow the plaintiff to complete such work and forbade him doing so, and compelled him to leave the premises of the defendant. Such findings are abundantly supported by the evidence and must be regarded as having been established. The defendant' has paid nothing to the plaintiff on the contract, except what he paid to the plaintiff’s helper. Moreover, the defendant contends that the plaintiff is not entitled to recover any compensation in this action by reason of his failure to put on the third coat of hard finish.

Such being the facts it is certain the plaintiff is entitled to recover in this action. The only difficulty we have had in the case is to determine just what amount he is entitled to recover. He certainly is entitled to recover the contract price less whatever it would have cost him to complete the job when he was so stopped by the defendant. Neither party in the court below seems to have reached any definite and satisfactory conclusion. It is found that in preparing the material for the third coat of hard finish the plaintiff and his helper had performed services of the value of $10.50 prior to the time he was so stopped by the defendant; so that the putting on of the third coat of hard finish was well under way when the plaintiff was so stopped. It appears from the evidence that, on measuring the rooms and deducting the doors and windows, there were 864 square yards of the plastering, which at the contract price amounted to $95.04. This ■amount added to the contract price of the two chimneys made $107.04. Deducting from that amount the $29 paid to the helper, we have a balance of $78.04. The plaintiff concedes that the court allowed him $5.75 more than he was entitled to. In other words, the plaintiff concedes that he is only entitled to recover $54.25, which is $23.79 less than the plaintiff would have received under the contract if the defendant had permitted him to complete the work of putting on tbe third coat of bard finish. In -view of the services performed by the plaintiff and his helper in preparing to put on that coat of hard finish before he was stopped by the defendant, we must hold that the $54.25 so conceded is no more than the plaintiff is entitled to recover in any view of the case.

It follows, therefore, that the defendant is in no way aggrieved by allowing the plaintiff to recover the amount last stated. Sec. 3048, Stats. 1898; Olson v. Peabody, 121 Wis. 675, 681, 682, 99 N. W. 458. But the defendant made no attempt in the court below to correct such error. That being so, it must be regarded as having been waived, and hence is not to affect the question of costs in this court. Mahon v. Kennedy, 87 Wis. 50, 53, 54, 57 N. W. 1108; Andresen v. Upham Mfg. Co. 120 Wis. 561, 566, 98 N. W. 518. In the first of these cases there was a discrepancy of $7.85 and in the other of $17.25.

By the Court. — The judgment of the circuit court is modified by reducing the amount of the plaintiff’s recovery to $54.25, and as so modified is affirmed.