Duval v. Am. Tel. & Tel. Co.

• Decision Date: 11 March 1902
• Citation: 89 N.W. 482,113 Wis. 504
• Court: Wisconsin Supreme Court
• Parties: DUVAL ET AL. v. AMERICAN TELEPHONE & TELEGRAPH CO.

113 Wis. 504

89 N.W. 482

DUVAL ET AL.

v.AMERICAN TELEPHONE & TELEGRAPH CO.

Supreme Court of Wisconsin.

March 11, 1902.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by Stephen Duval and others against the American Telephone & Telegraph Company. Judgment of nonsuit, and plaintiffs appeal. Affirmed.

The complaint alleged that the defendant, being about to build a telephone line from Superior, Wis., to Minneapolis, Minn., on the 7th day of June, 1899, entered into a contract with the plaintiff Duval, whereby he agreed to furnish food, supplies, boarding, lodging, and shelter for all the men and teams that should be employed by the defendant in construction of such line, in consideration of which the defendant promised to pay specified prices per man and team, “and further agreed that the number of men so lodged and boarded should at no time be less than sixty, and the number of teams so fed and sheltered should at no time be less than eight,” and alleged performance by the plaintiff and failure by the defendant to supply either all its men and teams to be boarded by the plaintiff, or to supply so many as 60 men and 8 teams; claiming due by reason of the deficit below 60 men and 8 teams $1,713.33 in excess of payments made, and also claiming damages $2,332 for omission to board certain of its men and teams with the plaintiff. The answer admitted the making of a contract on the day named, alleged that the same was in writing, and annexed a copy, which was substantially identical with the terms as set forth in the complaint, except that it contained no agreement by the defendant to board either all its men and teams, or any number, with the plaintiff; alleged full payment for all men boarded; set up as defense breaches of the contract by the plaintiff in the way of failure to furnish proper accommodations and board, and by way of counterclaim again set up the making of the written contract, the breaches by the plaintiff, and claimed damages by reason of said breaches in the sum of $500. The reply was in the following words: “First. Plaintiffs deny each and every allegation of defendant's counterclaim not hereinafter admitted, qualified, or explained. Plaintiffs admit that on or about the 7th day of June, 1899, it entered into a contract and agreement with the defendant as set forth in plaintiff's complaint; that at the time of making such agreement the defendant was about to construct a telephone line extending from the city of Superior, in Douglas county, Wisconsin, to the city of Minneapolis, in the county of Hennepin, state of Minnesota, in the construction of which it was necessary for the defendant to employ a large number of men and teams until the completion thereof; that the plaintiff Stephen Duval was to furnish food, lodging, and shelter for the men and teams during the continuance of such work as set forth in plaintiff's complaint, for which he was to receive $5.25 per week for each man and $1.00 per day for each team so boarded, fed, sheltered, and kept, from the defendant.” Upon the trial it was conceded that defendant had paid, at the contract rate, for all men and teams actually boarded and sheltered. The plaintiff Duval testified that on the 7th of June he made with the defendant the written contract attached to the answer. He thereupon offered to prove by his own testimony that on the day following an oral agreement was made in modification thereof, whereby were added the...