Lindemann v. Kopczynski

• Decision Date: 09 December 1913
• Citation: 144 N.W. 196,155 Wis. 164
• Parties: LINDEMANN v. KOPCZYNSKI.
• Court: Wisconsin Supreme Court

155 Wis. 164

144 N.W. 196

LINDEMANN

v.KOPCZYNSKI.

Supreme Court of Wisconsin.

Dec. 9, 1913.

Appeal from Circuit Court, Milwaukee County; L. W. Halsey, Judge.

Action by Herman J. Lindemann against Andrew Kopczynski. From a judgment for defendant, plaintiff appeals. Reversed and remanded with directions.

This action was brought in the civil court of Milwaukee county to recover for breach of contract. The complaint alleges that in consideration of $4,000 the defendant agreed to erect and construct two certain flat buildings on the premises described, and, among other things, agreed that the flooring in said buildings on the first and second floors of each should be No. 1 maple flooring, and that the defendant, without the knowledge and consent of the plaintiff, and contrary to the terms of the agreement, substituted and laid in said buildings floors of beech wood, and that by reason of said change the floors spread, warped, and became unfit for use, which unfitness was due to the inferiority of the beech flooring, in consequence of which plaintiff suffered damages in the sum of $258, for which sum plaintiff demanded judgment. The answer was a general denial. The civil court ordered a nonsuit, and judgment was entered accordingly, and the plaintiff appealed to the circuit court. It appeared on the trial in the civil court that before the commencement of the action the plaintiff sold the premises upon which the buildings were situate. The civil court rendered an opinion which appears in the record, in which he found that the plaintiff received as much from the sale of the property as if maple flooring had been put in the buildings as agreed, therefore plaintiff sustained no damages, and could not recover damages unless he was legally liable to the vendees in the contract of sale upon representations made by him, and further found that it appears that he sold the buildings, together with the land, not knowing that there was a breach of contract on the part of the defendant, upon which ground the court based its judgment of nonsuit. The civil court held that no damages were proven, and for that reason there could be no recovery. In the circuit court the plaintiff moved to reverse the judgment of the civil court, and the defendant moved to affirm. The defendant's motion was granted, and judgment was entered in said circuit court dismissing the action, with costs against the plaintiff, from which judgment plaintiff appealed to this court.Lorenz & Lorenz, of Milwaukee, for appellant.

Fitzsimmons & Flynn, of Milwaukee (J. W. Flynn, of Milwaukee, of counsel), for respondent.

KERWIN, J. (after stating the facts as above).

[1][2] The civil court in a written opinion in the record nonsuited the plaintiff for the reason that it did not appear that plaintiff sustained damage because the court held that he sold the property for as much as if the floors had been maple. The court also, inferentially at least, concedes that a contract was made as contended by plaintiff, but held that no damages were shown, for the reason before stated. A claim was also made that the plaintiff consented to a substitution of beech for maple flooring after the contract had been made, and to that extent the contract was modified. The evidence does not establish a substitution of beech flooring for maple by consent of plaintiff. The burden was on defendant to show such change in the contract. Only two witnesses testified on the subject, plaintiff and defendant; the defendant affirming that a change was...