Moritz v. Larsen

• Decision Date: 31 January 1888
• Citation: 36 N.W. 331,70 Wis. 569
• Parties: MORITZ v. LARSEN.
• Court: Wisconsin Supreme Court

70 Wis. 569

36 N.W. 331

MORITZ

v.LARSEN.

Supreme Court of Wisconsin.

January 31, 1888.

Appeal from Milwaukee county court.

This action was brought by Ludwig Moritz under chapter 143, Rev. St., to enforce a lien upon certain premises of the defendant therein described, for an amount alleged to be due the plaintiff for labor performed and materials furnished by him in and about the erection of a building for the defendant on such premises. One Hans Larsen was made a defendant to the action, but on the trial a non-suit was ordered as to him because it appeared that he was acting as agent for the defendant in the matters out of which this action arose, and that he disclosed such agency to the plaintiff in due time. The answer of the defendant Maren Larsen is, in substance, a general denial. That of Hans Larsen sets out a contract in respect to the erection of the building in question different from the contract alleged in the complaint. It is undisputed that the contract provided for the payment to the plaintiff of a certain sum as the work progressed, and that the balance of the contract price therefor should be payable when the work was completed, according to the contract. It is also undisputed that the sums payable during the progress of the work were fully paid by the defendant. The questions chiefly litigated on the trial were submitted to the jury to be specially answered. These questions, and the answers thereto, returned by the jury are as follows: “ First. Was the building contract between the parties as claimed by the plaintiff or as it is claimed by the defendant? Answer. As claimed by the defendant. Second. Did the plaintiff complete his work under said contract? If yes, at what date was the work so completed by him? A. Not completed. Third. If you answer the last question ‘Yes,’ what sum is now due the plaintiff from the defendant Maren Larsen? (Not answered.) Fourth. If you answer the second question ‘No,’ has the defendant Maren Larsen accepted said building? A. No. Fifth. Did the plaintiff perform extra work, and furnish extra materials, in the construction of said house, at the request of the defendant Maren Larsen, and if so, how much is plaintiff entitled to for such extra work and labor? A. Thirteen dollars, when contract completed. Sixth. Do you find for the plaintiff or for the defendant? If for the plaintiff, at what sum do you assess his damages? A. Thirteen dollars, when contract is completed, for extra work.” On the return of such special verdict, the plaintiff moved the court to set it aside and for a judgment in his favor for the amount claimed in his complaint. The defendant also moved thereon for judgment. After hearing the motions the court filed the following findings of fact and conclusions of law: “ First. That the building contract between the parties herein was as claimed by the defendants. Second. That the plaintiff did not and has not completed his contract. Third. That neither the defendant Maren Larsen nor the defendant Hans Larsen has accepted said building. Fourth. That the plaintiff performed extra work and furnished extra materials in the construction of said house, at the request of Hans Larsen, who was the agent for Maren Larsen. The value of said extra work and materials furnished was thirteen dollars. Fifth. That said balance on the contract and for the extra work was to be paid for when the contract was completed. Sixth. That the evidence produced by plaintiff at trial did not show that the defendant Hans Larsen had any interest in the house and premises.

“CONCLUSIONS OF LAW.

“ First. That as to the defendant Hans Larsen judgment of nonsuit should be rendered against the plaintiff, with costs. Second. That plaintiff's motion to set aside the verdict and give judgment, as prayed for in the complaint, is denied. Third. That the defendant's motion for a judgment on the verdict should be granted, with costs and disbursements.” Judgment was thereupon entered for the defendant, dismissing the complaint, with costs. This appeal is by the plaintiff from such judgment. The case is further stated in the opinion.

Nash, Pereles & Sons, for appellant.

J. E. Wildish, for respondent.

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

Several errors are alleged as grounds for a reversal of the judgment herein. These will be stated and considered in their order.

1. On motion of the defendant the jury was sent to view the premises. The judge of the court did not accompany the jury, and was not asked to do so. On authority of Fraederich v. Flieth, 64 Wis. 184, 25 N. W. Rep. 28, counsel for plaintiff claims that the failure of the judge to make the view is error. True, we said in that case that “a view by a jury called in an equity case to determine a question of fact should not be allowed unless the trial judge participates therein;” and it is also true that this is an equity case. Willer v. Bergenthal, 50 Wis. 474, 7 N. W. Rep. 352. But the rule above laid down...