Taylor v. Williams

6 Wis. 363 | Wis. | 1858

By the Court,

Cole, J.

We do not see how the instructions of the court given to the jury in this case can be sustained. The court charged the jury that if the plaintiff had any claim on the defendant for the advances and wagons, &c., made to the defendant on the contract, that they might find a verdict for the same. The suit was brought on a written contract between the parties in which Taylor had agreed to build a house, for Williams, of certain dimensions, and in a certain manner, and have the same completed by the 15th of Juno, 1855. Williams was to pay for the house in wagons, and to designate the lot upon which the house was to be erected. It seems the house was not built according to contract, but Williams took possession of the house, completed it, and went to living in it. In accepting the work done, the plaintiff below admitted that it was of some benefit to him, and that Taylor was entitled to some compensation. Lucas vs. Goodwin, 3 Bing. N. C. 137; same case 32 Eng. C. R., 309; Burn vs. Miller, 4 Taunt., 745; 2 Story on contracts, section 977a; 2 Greenl. Ev., section 104; Hayward vs. Leonard, 7 Pick., 182; 2 Parsons on Cont., p. 35, note "d." We think the court should have instructed the jury that they were to credit Taylor for tbe reasonable value of tbe benefit, wbicb on the whole, Williams derived from the work which had been done by the defendant below; and this should be deducted out of the claim of plaintiff below for advances on wagons, &c., made on the contract.

This is the only point in the case we deem material and necessary to be noticed.

Judgment of the circuit court reversed, and new trial ordered.