Robertson v. Burton

• Decision Date: 26 December 1902
• Citation: 92 N.W. 538,88 Minn. 151
• Parties: ROBERTSON et al. v. BURTON.
• Court: Minnesota Supreme Court

88 Minn. 151

92 N.W. 538

ROBERTSON et al.

v.BURTON.

Supreme Court of Minnesota.

Dec. 26, 1902.

Appeal from district court, Otter Tail county; L. L. Baxter, Judge.

Action by William A. Robertson and others against Willard P. Burton. Verdict for plaintiffs. From an order denying a new trial, defendant appeals. Reversed.

Syllabus by the Court

1. The failure of the court to submit to the jury a question of fact in issue by the pleadings, and which was not abandoned at the trial, is error; and under chapter 113, Laws 1901, requests to submit such issue, and exceptions for failure so to do, are not necessary. Steinbauer v. Stone, 88 N. W. 754, 85 Minn. 274, and other cases, distinguished. E. R. Dampier and Charles C. Houpt, for appellant.

John L. Townley and H. N. Bruce, for respondents.

LEWIS, J.

According to the pleadings, there was made distinct issue upon two propositions. First, as to whether plans and specifications had been furnished in accordance with the terms of the contract; second, whether respondents had abandoned the work before its completion, without just cause,-that is, because appellant failed to furnish the necessary material. So far as the preparation of plans and specifications are concerned, respondents are not in a position to take advantage of any failure in that respect on the part of appellant. The agreement by appellant to furnish them was waived by going ahead with the work, under the personal superintendence of appellant, in accordance with such sketches, plans, or specifications as were prepared from time to time as the work progressed. But there was no modification of the contract as to the price to be paid for services, the duty of appellant to furnish material, nor in respect to the obligation on the part of respondents to complete the building. If respondents had substantially completed the barn at the time work was suspended, they would be entitled to recover at the price named for the number of thousand feet of lumber put in place by them, but, if they abandoned work before the building was practically finished, then they would not be entitled to recover. In submitting the case to the jury, the court stated that the parties had started out to do the work under a written agreement upon plans and specifications to be furnished by appellant, but that they were not provided, and the contract was so modified that the furnishing of plans and specifications was waived, as well as the time within which the building was to be completed, and that the only thing left in the contract that was binding, if anything, was the price per thousand they were to receive for labor. The court...