Leitermann v. Barnard

Decision Date01 February 1910
Citation141 Wis. 488,124 N.W. 655
PartiesLEITERMANN v. BARNARD.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Calumet County; Geo. W. Burnell, Judge.

Action by John J. Leitermann against William Barnard. Judgment for plaintiff, and defendant appeals. Affirmed.

Appeal from a judgment of the circuit court for Calumet county, adjudging the plaintiff was entitled to a mechanic's lien on defendant's premises, foreclosing the lien and ordering sale of said premises to pay this lien for $122.60 damages, and $94.38 costs.

Among references cited upon the part of the appellant were the following: Manitowoc, etc., Co. v. Manitowoc Glue Co., 120 Wis. 1, 97 N. W. 515;Widman v. Gay, 104 Wis. 277, 80 N. W. 450; Fuller & W. Co. v. Shurts et al., 95 Wis. 606, 70 N. W. 683;Williams v. Thrall, 101 Wis. 337, 76 N. W. 599;Manning v. School Dist., 124 Wis. 84, 102 N. W. 356;Houlahan v. Clark, 110 Wis. 43, 85 N. W. 676;Manthey v. Stock, 133 Wis. 107, 113 N. W. 443;Froelich v. Christie, 115 Wis. 549, 92 N. W. 241;Charley v. Potthoff, 118 Wis. 258, 95 N. W. 124; Phœnix M. Co. v. McCormick H. M. Co., 111 Wis. 570, 87 N. W. 458;Keefe v. Furlong, 96 Wis. 219, 70 N. W. 1110;Weeks v. Robert A. Johnson Co., 116 Wis. 105, 92 N. W. 794;American F. & F. Co. v. Board of Education, 131 Wis. 220, 110 N. W. 403;J. H. Silkman L. Co. v. Hunholz, 132 Wis. 610, 112 N. W. 1081, 11 L. R. A. (N. S.) 1186, 122 Am. St. Rep. 1008.

Among other references upon the part of the respondent were the following: Cooper v. Cleghorn, 50 Wis. 113, 6 N. W. 491;Gunderson v. Swarthout, 104 Wis. 186, 80 N. W. 465, 76 Am. St. Rep. 860;Baringer v. Evenson, 127 Wis. 36, 106 N. W. 801;E. M. Fish Co. v. Young, 127 Wis. 149, 106 N. W. 795;Rinzel v. Stumpf, 116 Wis. 287, 93 N. W. 36;Ashland L. & S. Co. v. Shores, 105 Wis. 122, 81 N. W. 136;Zipp M. Co. v. Pastorino, 120 Wis. 176, 97 N. W. 904;Van Trott v. Wiese, 36 Wis. 439;Friend Bros. C. Co. v. Hulbert, 98 Wis. 183, 73 N. W. 784;Palmer v. Banfield, 86 Wis. 441, 56 N. W. 1090;Kingman & Co. v. Watson, 97 Wis. 596, 73 N. W. 438;Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669, 14 L. R. A. (N. S.) 1107;Rohrer v. Lockery, 136 Wis. 532, 117 N. W. 1060.

James Kirwan, for appellant.

J. E. McMullen, for respondent.

TIMLIN, J.

The trial court found upon sufficient evidence that the plaintiff agreed to install a gasoline gas lighting plant in the saloon and dwelling house of defendant, situate upon certain described land, and that said plant would properly and satisfactorily light said building; if it did not the plaintiff would remove said lighting plant from the building and pay any damages that he might have caused by setting up and installing the lighting plant. The lighting plant did not properly or satisfactorily light the defendant's premises, and plaintiff attempted to remove the same, as provided by the contract, whereupon defendant refused to permit its removal, unless plaintiff would give security or make a deposit of $50 to repair any damages caused by the installing of said lighting plant. The plaintiff refused to give security or make this deposit, whereupon defendant forbade the removal of said plant, and forcibly prevented its removal. This action to foreclose a mechanic's lien was then commenced. The circuit judge treated the defendant's refusal to permit the removal of said plant, except upon conditions which he had no right to impose, as an acceptance of the plant, and rendered judgment for the full contract price. This was correct. The defendant offered no proof of the diminished money value of the plant, and indeed no proof of any damages whatever except the sum of $15 damage to the buildings caused by making apertures for the reception of pipes or fixtures, and which would have been a proper item of damages only if the plant had been removed.

We may entirely agree with the appellant that there was an entire contract in the sense that part performance would not entitle the plaintiff to recover. But the law relating to acceptance applies to such a contract. Here there was what was equivalent to an...

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