Conway v. Mitchell

• Decision Date: 22 October 1897
• Citation: 97 Wis. 290,72 N.W. 752
• Parties: CONWAY v. MITCHELL.
• Court: Wisconsin Supreme Court

97 Wis. 290

72 N.W. 752

CONWAY

v.MITCHELL.

Supreme Court of Wisconsin.

Oct. 22, 1897.

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

Action by John S. Conway against John L. Mitchell on an oral contract for the construction of a monument. From a judgment in favor of plaintiff, both parties appeal. Reversed.

The complaint alleges, in effect: That February 23, 1891, the defendant cabled to the plaintiff, requesting him to come at once to Milwaukee for the purpose of preparing and submitting to him a model for a soldiers' monument, to be erected at such place in Milwaukee as the defendant should designate. That the plaintiff, in pursuance of such request, prepared and submitted designs for such a monument. That at the suggestion of the defendant an advisory committee was selected, of which he was chairman, and the defendant, with the committee, approved of the designs so prepared by the plaintiff. That May 25, 1891, the defendant made and entered into a contract with the plaintiff whereby the plaintiff agreed to make and complete for the defendant a soldiers' monument, consisting of four figures in bronze, and a suitable pedestal of stone, and, when completed, to erect the same at such place in Milwaukee as should thereafter be designated by the defendant,--which monument should correspond to such model theretofore examined and approved; that the plaintiff should commence and continue work thereon until he should have it fully completed to the satisfaction of the committee, together with the pedestal of stone, upon which the bronze figures were to be placed, satisfactory to the committee. And the defendant, in consideration thereof, did promise and agree to pay the plaintiff the sum of $25,000 for such work, when completed to the satisfaction of the committee, and placed in position in Milwaukee; and he further agreed to advance, from time to time, such sums of money as might be needed by the plaintiff to pay his expenses as he progressed with the work. That the plaintiff, in July, 1891, entered upon the performance of the contract. That as the work progressed, and as he needed money to defray expenses, the defendant advanced and paid to the plaintiff thereon, in all, $5,511. That the plaintiff proceeded with the work with due diligence, and gave his exclusive time and thought thereto, and completed a half-size model of the same, ready for shipment to Milwaukee. That the plaintiff has been ready and willing to perform his part of the contract, but that the defendant had refused to perform his part thereof, or to allow the plaintiff to proceed with the performance of his part of the contract,--and demands judgment for $18,000. The defendant answered by way of admissions and denials, and alleged, in effect, that neither the defendant, nor any person authorized by him, ever made or subscribed any contract or agreement or note or memorandum thereof, in writing, with the plaintiff, for the making or completion of a soldiers' monument, or any other monument, of any kind or description whatever, or for a suitable or any pedestal to such monument, or for the erection of any monument in Milwaukee or elsewhere; that the only agreement which the defendant ever made with the plaintiff, relating to a soldiers' monument and pedestal to be erected in Milwaukee or any other place, was oral, and by its terms was not to be performed within one year from the making thereof. At the close of the trial the jury returned a verdict to the effect (1) that it was not the agreement of the parties that the defendant should pay the plaintiff the cost of the construction of the monument, not to exceed $25,000; (2) that the defendant, at the time of ordering the designing and construction of the monument in question, did agree to pay for the same the sum of $25,000; (3) that it would have cost the plaintiff, to have finished and put in place the monument originally contracted for, including the pedestal thereof, $11,600; (4) that the pecuniary value to the plaintiff of the plaster cast made and retained by him, after deducting the expenses incurred by him on account thereof, after he had been notified not to proceed with the contract, except to the extent that might be necessary for the preservation of any work capable of being preserved or used thereafter, was $684. Upon such verdict the court ordered judgment in favor of the plaintiff and against the defendant for $7,195, with interest thereon from the time of the commencement of this action, and judgment was entered thereon accordingly. From that judgment, and the whole thereof, both parties appeal to this court.Miller, Noyes, Miller & Wahl, for plaintiff.

Fish, Cary, Upham & Black, for defendant.

CASSODAY, C. J. (after stating the facts).

It appears that the defendant requested the court to direct the jury to find a special verdict as required by the statute. That made it the imperative duty of the court to prepare such verdict, “in the form of questions, in writing, relating only to material issues of fact and admitting a direct answer.” Rev. St. § 2858. The counsel for the plaintiff propounded five questions to be so submitted, including questions as to whether the work was to be done “at an agreed price,” and, if so, the amount. The court prepared and submitted the second, third, and fourth questions, referred to in the foregoing statement, but failed to prepare any question upon the subject embodied in the first question so submitted. Thereupon counsel for the defendant asked the court to submit to the jury this question: “Was it the agreement of the parties that the defendant should pay to the plaintiff the cost of the construction of the monument, not to exceed $25,000?” The court did submit that as the first question to the jury, with the following words immediately preceding: “Propounded by counsel for the defendant.” The substance of the question and answer of the jury thereto is given in the statement. In submitting that question to the jury, the court, among other things, charged the jury that: “The first interrogatory which is proposed to you is proposed at the instance of the defendant. It stands apart from all others, which are proposed by the court; and, if it be answered in the affirmative, it disposes of the case, and it will not be necessary, in that event, to answer any other interrogatory. * * * The complaint in this case goes upon a contract to pay $25,000, and if it turns out that the contract was not to pay $25,000, but a sum not to exceed $25,000, as you can see, the complaint breaks down, and that will be the end of the case. * * * I come now to the interrogatories which are proposed by the court without the instance of either party, which I find it necessary to submit to you in the event that you answer this first interrogatory in the negative. If you answer it in the affirmative, you need go no further, as you will see by the very form of the next interrogatory.” The three questions so submitted by the court on its own motion were accompanied by these words written on the margin: “Propounded by the court.” There was certainly plenty of evidence to support an affirmative answer to the question so requested by the defendant's counsel. The defendant repeatedly testified to the effect that he never agreed to pay any specific sum, but did promise orally to expend not to exceed $25,000. The plaintiff's witness Bell corroborates him in this respect. We are clearly of the opinion that the defendant was prejudiced in the submission of the question so requested by his counsel; and that, within the rulings of this court, it was reversible error. Ryan v. Insurance Co., 77 Wis. 611, 46 N. W. 885;Chopin v. Paper Co., 83 Wis. 192, 53 N. W. 452;Reed v. City of Madison, 85 Wis. 667, 56 N. W. 182.

2. Besides, the second question submitted to...