Herman Andrae Elec. Co. v. Packard Plaza, Inc.
| Citation | 16 Wis.2d 44,113 N.W.2d 567 |
| Parties | HERMAN ANDRAE ELECTRICAL CO., a Wisconsin corporation, Plaintiff-Respondent, v. PACKARD PLAZA, INC., a Wisconsin corporation, et al., Defendants-Appellants. |
| Decision Date | 06 March 1962 |
| Court | United States State Supreme Court of Wisconsin |
Action by plaintiff Herman Andrae Electrical Co. against defendant Packard Plaza, Inc., for the foreclosure of a mechanic's lien. Plaintiff's lien claim arose from an agreement between the parties whereby plaintiff was to perform certain electrical work and furnish the necessary materials and supplies and defendant Packard was to pay the reasonable value thereof.
At the time of this action plaintiff had performed the work agreed upon and rendered a bill for $84,284.77, defendant Packard had paid $70,000 on account, and the parties were in disagreement as to the reasonable value of plaintiff's services and materials. Plaintiff filed the lien in the amount of $14,284.77 against certain rel estate owned by defendant Packard upon which plaintiff's efforts and materials had been expended. Defendant Packard answered by denying plaintiff's claim and then counterclaimed for $8,000, alleging that the reasonable value of the labor and materials was $62,000. American Automobile Insurance Company was joined as a defendant because it was the surety on the undertaking filed by defendant Packard for release of the lien.
Upon demand, plaintiff filed an extensive bill of particulars itemizing the total bill in detail in three categories, the summary of which is as follows:
Material $36,728.02
Labor 42,964.57
Miscellaneous Items 4,592.18
Total: $84,284.77
The breakdown of the Miscellaneous Items category disclosed that it covered cartage, mileage, freight, cost of electrical permits, insurance, trucking, use of an aerial ladder, and two minor items paid to subcontractors.
Two pre-trial conferences were held that resulted in the following stipulation:
'That the issue of this case is to be submitted to a panel of referees, and the parties agree to be bound by the referees' conclusion, and by that they understand that a judgment will be entered based on the referees' conclusions, that is, by majority vote of the referees' conclusions, unless the decision of the referees can be shown to be tainted by fraud or otherwise shocks the conscience of the court.'
It was further stipulated that each party was to appoint and pay one referee, and the third was to be appointed by the trial court, his fee to be shared equally by the parties. The trial court phrased the 'ultimate issue for resolution' by the referees to be: 'What was the fair market value of the labor reasonably necessary to effect the installation of the materials set forth in plaintiff's bill of particulars at the time of the work in question?' The parties, through counsel, agreed to this statement of the issue for the referees. Defendant Packard's counsel further stipulated that his client would accept as reasonable the charges for materials as set forth in the bill of particulars, and expressly waived the defense that plaintiff's lien was improperly filed.
The referees reported back to the trial court that 'the fair market value of the labor reasonably necessary to effect the installation of the materials set forth in the plaintiff's bill of particulars at the time of the work in question is $38,519.67 based upon 9,021 hours of labor at a rate of $4.27 per hour.'
Defendants moved for judgment on the report of the referees and in accordance with the stipulation of the parties. Plaintiff objected to this motion on the ground that the sum of $4,592.18 for Miscellaneous Items was omitted and that this amount should be included in the judgment along with the stipulation as to material and the finding as to labor. The trial court concluded that inadvertently the entire controversy had not been disposed of by the stipulation and the reference to the referees, and entered an order on March 10, 1961, providing that the action be brought on for a trial 'limited to the consideration of defendants' liability to plaintiff for the 'miscellaneous items' * * *.'
Defendant moved for a review of this order and filed an affidavit of its referee to the effect that he had considered the miscellaneous items in arriving at his conclusion. On May 9, 1961, the trial court reaffirmed its order of March 10, 1961. Defendants have appealed from the March 10th order.
Charles L. Goldberg, Francis X. Krembs, Milwaukee, for appellants.
Puls & Puls, Milwaukee, for respondent.
We are satisfied that the order appealed from does not fall within any of the categories of appealable orders set forth in sec. 274.33, Stats. 1 This requires that the appeal be dismissed.
The instant order clearly is not embraced within those orders made appealable by subs. (1), (3) and (4) of the...
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Wittke v. State ex rel. Smith
...matter and settle the rights of the parties. . . .' " Antes, supra, 321, 246 N.W.2d 673, quoting Herman Andrae Electrical Co. v. Packard Plaza, Inc., 16 Wis.2d 44, 48, 113 N.W.2d 567 (1962). This court's holding of finality is incompatible with the state's theory that a second complaint may......
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...at bar. The test for determining whether an order is a 'final order' was asserted by this court in Herman Andrae Electrical Co. v. Packard Plaza (1962), 16 Wis.2d 44, 48, 113 N.W.2d 567, 569: '* * * the test to determine whether an order is a 'final order' is its effect on the rights of the......
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...and one affecting a 'substantial right.' We conclude that the order is not final. In the case of Herman Andrae Electrical Co. v. Packard Plaza (1962), 16 Wis.2d 44, 48, 113 N.W.2d 567, 569, we 'This court has stated that the test to determine whether an order is a 'final order' is its effec......
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