59 Wis. 203 | Wis. | 1884
In this case it appears that the defendant was engaged in constructing a sewer in Milwaukee under a contract with the city, and required a pump to drain the ditch. He hired a steam-pump of the plaintiffs for that purpose. The parties disagree as to the terms of the verbal contract which was made for the use of the pump. The plaintiffs claim they were to receive at the rate of $50 per day for the use of the same, and were also to be paid the wages of theanen employed in operating it, and for the fuel used in run-
The principal questions we have to consider arise upon the charge of the trial court. A number of exceptions were taken to different parts of the charge, but they will not be noticed in detail. The learned county court charged the jury that the contract was for the use of the pump by the day, no time being specified for its employment. No fault is found with this charge, as it is in accord with the testimony given on both sides. The court then proceeded to give some instructions, which were excepted to, and upon which error is predicated here. As there is some repetition in the instructions, we shall not copy them. We think they are fairly comprised in the proposition stated in the brief of plaintiffs’ counsel. That proposition is this: Where there is no warranty to perform any particular amount of work in a prescribed time or manner, but a party hires a man or a machine by the day, at á stipulated per diem, no time of employment being agreed upon, and the employer is present and sees for himself the quality of the work performed, he must pay the stipulated wages so long as he voluntarily continues the employment; and he cannot defend against a
This proposition substantially embraces the charge to which the chief objection is taken. If it is a correct statement of the law which was applicable to the case, it effectually disposes of the counterclaim that the pump was imperfect, frequently broke down, and delayed the defendant in the performance of his contract with the city. It seems to us the proposition is substantially correct. It is true, evidence was given on the part of the defendant that the men operating the pump did not perform their work in a workmanlike manner, and the learned counsel for the defendant criticises the charge because the court stated that these men stood in the same relation to the defendant that any of his other employees did whom he hired by the day. It is said that this was incorrect, because, confessedly, these men were in the employ of the plaintiffs, who hired them, and who were responsible for their wages. But, obviously, what the learned county judge meant by this remark, and what he did say, in another part of the charge, was that the defendant had the right, at any time when dissatisfied with the way the work was being performed, to put an end to the employment by discharging the pump and the' men furnished to operate it. That the defendant had that right under the contract cannot be successfully denied. The means of redress were in his own hands. He was on the ground, saw how the men and pump worked, and if they did not do good work, or the pump failed to drain the water from the sewer and delayed him more than he was willing to wait in consequence of getting out of repair, he could have said to the plaintiffs that he did not wish to have the pump any longer; for he had hired the pump for no specific time, and was under no obligation to keep it a day if either it or the men operating it did not work to his satisfaction. It is, doubtless, true that he was delayed in
The plaintiffs were permitted to prove, against the defendant’s objection, the oost of the pump and engine. It is certainly true that this testimony was wholly immaterial. But its admission was harmless, as it could not have possibly prejudiced the defendant under the issues in the case.
Upon the whole record we think the judgment of the county court was correct and must be affirmed.
By the Cowt.— Judgment affirmed.