Edwards v. Roepke
| Decision Date | 15 October 1889 |
| Parties | EDWARDS v. ROEPKE ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Manitowoc county; N. S. GILSON, Judge.
It appears in the record that December 11, 1884, the defendant Cumberlidge entered into a contract in writing with the garnishees, Diedrick Roepke & Bros., as partners, to the effect that Cumberlidge was to build and furnish to and for said Diedrick Roepke & Bros. one steam-boiler and all fixtures described, to be completed without delay; and in consideration therefor Diedrick Roepke & Bros. therein agreed to pay to Cumberlidge the sum of $1,000 in terms and rates as follows: $500 at the time of the arrival of the iron in Manitowoc, $200 two weeks after the work on the boiler should be commenced, the balance after and as soon as the work had been completed. Diedrick Roepke & Bros. also agreed to furnish and deliver free, at Manitowoc City, the boiler then in their mills in the town of Manitowoc Rapids, together with all the fixtures then attached and belonging to said boiler, and also to transport the new boiler from Manitowoc to their mills, provided, however, that said Diedrick Roepke & Bros. might at any time before the completion of the new boiler sell the old one, paying to Cumberlidge therefor the sum of $225; and it was therein further agreed and mutually understood that the work on said boiler should be done in good workman-like order of the first class, and that the material and workmanship should be subject to the inspection of a person therein named, and subject to his rejection. That July 13, 1885, this action was commenced against the principal defendant, Cumberlidge, and also against Diedrick Roepke & Bros., as garnishees.That August 3, 1885, the garnishees answered, denying all liability as such garnishees. The defendant Cumberlidge defaulted August 3, 1885. The plaintiff served notice on the garnishees and on the attorney for Cumberlidge that he elected to take issue on the answer of the garnishees, and that the plaintiff would maintain that said garnishees were liable as such in this action. In January, 1886, the cause was referred to a referee to hear, try, and determine. After the trial before said referee, and on January 8, 1889, the referee filed his report in writing, to the effect that he found, as matters of fact: (1) That December 11, 1884, Cumberledge and Diedrick Roepke & Bros. made the contract mentioned; (2) that December 11, 1884, Diedrick Roepke & Bros. sold to Cumberlidge one old boiler, which was then in possession of the Roepkes, for the agreed sum of $225, which sum was a fair valuation thereof, and which sum it was then worth; (3) that Cumberlidge, soon after the execution of said contract, commenced work upon the boiler, and had, at the date of the service on the garnishees, been at work on the same for at least four months; (4) that the payments of $500 and $200, respectively, were to be made on the new boiler, as stated in the contract, and that the old boiler should apply as a payment of $225 at the time of the execution of the contract; (5) that prior to the time when the garnishee papers were served, to-wit, July 13, 1885, Diedrick Roepke & Bros. had paid to Cumberlidge on said contract various sums, amounting in the aggregate to $691.50, besides the old boiler, amounting to $225, leaving a balance due upon said contract, according to the terms thereof, at the time of said service of said garnishee papers, of $8.50, which said old boiler, the property of Cumberlidge, was in the hands of the garnishees at the time of the service of said garnishee papers; (6) that after the service of the garnishee papers there was necessarily paid by Diedrick Roepke & Bros., for the completion of the new boiler, pursuant to the contract, the sum of $248.50, and that the same should be allowed the garnishees as having been necessarily expended, in order to secure the completion of said boiler; (7) that the amount to become due on said contract upon the completion of said boiler was the further sum of $308.50; (8) that the contract was fully executed and completed, and the new boiler therein mentioned accepted, as completed by the garnishees, in November, 1885; (9) that January 25, 1888, judgment was rendered and docketed against Cumberlidge and in favor of the plaintiff for $281.62, and has never been paid nor satisfied, nor any part thereof; (10) that the old boiler was in the hands of Diedrick Roepke & Bros. until November, 1885, when it was by them turned out to Cumberlidge, or upon his order, and has never since been in the possession of, or under the control of, the...
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