Monitor Iron Works Co. v. Ketchum
| Decision Date | 02 September 1879 |
| Citation | 2 N.W. 80,47 Wis. 177 |
| Parties | THE MONITOR IRON WORKS COMPANY v. KETCHUM and another [On rehearing.] |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Brown County.
Judgment affirmed.
For the appellants, there was a brief by Hudd & Wigman, and oral argument by Mr. Hudd.
For the respondents, there was a brief by Hastings & Greene, and oral argument by Mr. Hastings.
A former decision of this cause was inadvertently reported in 44 Wis. 126, after a reargument had been ordered. The statement of the case there made will not be repeated.
The circuit court referred the cause to a referee to hear, try and determine. The reference was compulsory, and the question of its regularity, or the power of the court to make it, was not raised on the former argument. The reargument was granted mainly upon that question.
If the trial of any issue of fact in the cause required the examination of a long account, the reference was proper. Tay. Stats., 1499, § 25; R. S., 761, sec. 2864; Supervisors v. Dunning, 20 Wis. 210. The circuit court necessarily had to determine from the pleadings alone whether such examination was required; and if the fact appears from the pleadings, that is sufficient.
The action is for work and materials, and the bill of particulars contains scores, even hundreds of items, each charged at a separate price. It is not denied in the answer that the plaintiff did the work for the defendants and furnished the materials charged; and the prices charged therefor are not controverted. But the answer states a special contract by the plaintiff to furnish certain machinery to the defendants at a stipulated price, which had been paid in full; and it is alleged therein that a large portion of the work and materials charged in the bill of particulars was done and furnished under the special contract.
It was unnecessary to examine the items of the account to ascertain whether the plaintiff did the work and furnished the materials charged, or whether the prices charged therefor were reasonable and just. All this stood admitted by the defendants. But it was necessary to examine the account, item by item, to ascertain which of the items (if any) were included in the special contract, and which were not. As was observed in Carpenter v Shepardson, 43 Wis. 406, the admissions of the answer "tend to abbreviate an examination of the account, but still leave an account to be examined."
The answer also contains a counterclaim for two sums of money and another for goods, wares, merchandise, freight, work labor and services, upon which issue is taken by a reply denying the same. Presumably a large...
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