Lemke v. Daegling

• Decision Date: 04 June 1881
• Citation: 52 Wis. 498,9 N.W. 399
• Parties: LEMKE v. DAEGLING.
• Court: Wisconsin Supreme Court

52 Wis. 498

9 N.W. 399

LEMKE

v.DAEGLING.

Supreme Court of Wisconsin.

Filed June 4, 1881.

Appeal from circuit court, Washington county.

Action to enforce a mechanic's lien for mason work on a dwelling-house. The complaint is on a quantum meruit. It alleges the value of the work to be $130, admits a payment of $60, and demands judgment for the balance. The answer alleges: (1) That the work was done under a special contract by the defendant to do the same for $80; and (2) that the price thereof did not become due until after the action was commenced. It also contains an averment that the work was unskilfully done, and a counter claim for damages by reason thereof. The cause was tried before a referee, who found and reported that plaintiff performed for defendant the alleged work “for the agreed price and of the value of $86,” which sum became due and payable at the completion of the work, which was before this action was commenced; that defendant has paid $60 on account thereof; that defendant should be allowed $5 on his counter-claim; and that plaintiff is entitled to judgment for $31. On the motion of plaintiff to confirm, and of the defendant to set aside, the referee's report, the circuit court modified the report by striking out the word “six” in that portion above quoted, and also by striking out “$21” and inserting “$15” as the sum which the plaintiff was entitled to recover; and in all other particulars confirmed the report. Judgment for the plaintiff was entered accordingly, from which the defendant appeals.Frisby & Barney, for respondent.

Frisby & Weil, for appellant.

LYON, J.

The recitals in the order of the circuit court modifying the report of the referee, and in the judgment, sufficiently show that the court adjudicatedthe motion of plaintiff to confirm the report, and that of defendant to set it aside. In substance and effect the order denies the motion to confirm as to six dollars of the balance found due the plaintiff, and grants it as to the residue of the report. It also grants the motion of defendant as to such six dollars and denies it in all other respects. The motion to set aside the report is founded expressly upon the exceptions taken before the referee, and specially and in detail renews such exceptions in the circuit court. The record fails to show that the court passed specificially upon any of these exceptions. It is claimed, on the authority of Fairbank v. Newton, 46 Wis. 644, that this omission is fatal to the judgment. The real point decided in that case is that a judgment entered pursuant to a report of a referee cannot be upheld, unless such report has been confirmed by the court. The opinion, it is true, blends the omission to confirm the report with the omission to pass upon the exceptions. In this it may be misleading, and probably has misled the learned counsel for the defendant. But what is there said of the omission to pass upon the exceptions taken before the referee, is pure obiter. The question was not before the court. My recollection is that it did not appear from the record that such exceptions were ever renewed in the circuit court.

The true rule is that when, as in this case, the court has confirmed or modified the report of the referee, but has failed to pass specifically upon the exceptions taken before the referee and renewed in the court, this...