Beers v. Kuehn

• Decision Date: 10 January 1893
• Citation: 84 Wis. 33,54 N.W. 109
• Parties: BEERS ET AL. v. KUEHN.
• Court: Wisconsin Supreme Court

84 Wis. 33

54 N.W. 109

BEERS ET AL.

v.KUEHN.

Supreme Court of Wisconsin.

Jan. 10, 1893.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Jarvis Beers and another against Julius Kuehn. From a judgment for plaintiffs, they appeal. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Action to recover for grading a city lot. The complaint alleged that in 1889 the plaintiffs graded defendant's lot under an agreement with defendant to pay 18 cents per cubic yard therefor, in April or May, 1890; that the number of yards of grading so done at defendant's request was 2,834; that said grading was reasonably worth 18 cents per cubic yard; that by reason of the premises the defendant became indebted to plaintiffs, June 1, 1890, in the sum of $515.12, no part of which has been paid, and for said sum, with interest from June 1, 1890, judgment was demanded. The defendant's answer alleged that the grading was done under a special contract, by which the whole work was to be done for $280, a tender of which sum was made before commencement of the action. Upon the trial plaintiffs' evidence tended to prove that the parties agreed on 18 cents a yard as the price of the grading; also that it was reasonably worth that amount. Defendant's evidence tended to prove that the parties agreed on the gross sum of $280 for the grading. No legal tender was proven. The jury returned a verdict of $280 for the plaintiffs. The judgment recites that an offer of judgment was made by defendant, and that the plaintiffs had failed to recover a more favorable judgment, whereupon judgment for the plaintiffs for $280, less the defendant's costs accruing since date of the offer of judgment, was entered, and plaintiffs appeal.Elliott & Hickox, for appellants.

Winkler, Flanders, Smith, Bottum & Vilas, for respondent.

WINSLOW, J., (after stating the facts).

The trial court charged the jury that the case must stand either upon the contract alleged by the plaintiffs or that alleged by defendant, and substantially instructed them that they were not entitled to find a verdict for the reasonable value of the work Due exception was taken to the various portions of the charge containing these propositions, and specific exception was taken to the charge because it did not permit a recovery upon a quantum meruit. We think the exception well taken. The evidence as to the contract was so utterly contradictory as to its terms that the...