Froelich v. Christie

• Citation: 115 Wis. 549,92 N.W. 241
• Parties: FROELICH v. CHRISTIE.
• Decision Date: 11 November 1902
• Court: Wisconsin Supreme Court

115 Wis. 549

92 N.W. 241

FROELICH

v.CHRISTIE.

Supreme Court of Wisconsin.

Nov. 11, 1902.

Appeal from circuit court, Clark county; James O'Neill, Judge.

Action by Christ Froelich against John Christie. Judgment for plaintiff. Defendant appeals. Reversed.

This action was commenced before a justice of the peace to recover $157.60 as the balance due the plaintiff for cutting, skidding, and hauling 2,960 logs, scaled at 151,420 feet, at the agreed price of $2.75 per 1,000 feet, amounting in all to $416.40, which the defendant had promised to pay therefor, but no part of which had been paid except $258.80, leaving a balance of $157.60, for which the complaint demands judgment. The answer consists of a general denial, and, as a separate defense, alleges, in effect, that such cutting, skidding, and hauling was under a contract entered into between the plaintiff and defendant in October, 1900, by the terms of which the plaintiff was, during the logging season of 1900-1901, to log off all the standing timber and windfalls on 240 acres of land described, for which the defendant was to pay him, when completed to the satisfaction of the R. Conner Company,--the owner thereof,--$2.75 per 1,000 feet, after deducting all labor claims which might be paid by the defendant, if any; that the plaintiff had failed and neglected to log off all the standing timber and windfalls, and had failed to complete the job to the satisfaction of the R. Conner Company, but had left a large and substantial part thereof uncompleted; that after examination of the premises the R. Conner Company refused to accept the job, by reason of such failure to complete the same; that the defendant had fully performed all the conditions of the contract on his part, and was willing and ready to pay the plaintiff whenever he completed the job according to the contract. The plaintiff recovered judgment before the justice, and the defendant appealed to the circuit court, where the cause was retried. It appeared on the trial, and is undisputed, that there is a creek running through the land in a northerly and southerly direction. At the close of all the testimony the trial court found from the undisputed evidence, as a matter of law, in effect: (1) That the plaintiff and defendant entered into a contract in the fall of 1900, “whereby the plaintiff was to log off certain timber on section 10,” in which section the land in question was located; (3) that the plaintiff was “to complete the contract on his part before anything was due him thereunder, except advances for labor and supplies;” and (4) that the plaintiff did not “log off the timber on the east side of the creek.” The jury returned a special verdict, which included the three questions so answered by the court; and the jury therein also found, as matters of fact, in effect: (2) That the contract did not include the timber on the east side of the creek; (6) that the contract was not to be accepted by the R. Conner Company; (8) but that it was accepted by that company; and (9) that they assessed the plaintiff's damages at $164.68, the same being the $157.60 claimed in the complaint and interest. From the judgment entered upon such findings, for the amount so found due and costs, the defendant brings this appeal.J. R. & C. R. Sturdevant, for appellant.

Marsh & Tucker, for respondent.

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

The contention that the plaintiff's claim exceeded the jurisdiction of the justice is without merit. The logs were scaled by the defendant's scaler. The defendant admitted upon the trial that the scale made by his scaler was correct. The plaintiff adopted that scale, and the amount alleged in the complaint and claimed by the plaintiff is according to the scale so made by the defendant's scaler. The facts...