Schweickhart v. Stuewe

• Decision Date: 28 February 1888
• Citation: 36 N.W. 605,71 Wis. 1
• Parties: SCHWEICKHART ET AL. v. STUEWE.
• Court: Wisconsin Supreme Court

71 Wis. 1

36 N.W. 605

SCHWEICKHART ET AL.

v.STUEWE.

Supreme Court of Wisconsin.

February 28, 1888.

Appeal from Milwaukee county court.

Action by George Schweickhart et al. against Gerhard F. Stuewe to recover the price of stone sold and delivered. The court directed a verdict for plaintiffs, and defendant appeals.Fiebing & Killilea, for appellant.

Stark & Sutherland, for respondents.

ORTON, J.

The respondents were engaged in quarrying and dealing in building-stone. The appellant had contracted to build a county jail for Milwaukee county. The respondents agreed to deliver to the appellant, in the city of Milwaukee, “all the building-stone needed or required by [him] in or about the erection or construction of said jail building, promptly and punctually, whenever [he] might want the same for such purpose, and without any delay on their part,” at certain agreed rates. This action is for the recovery of the balance unpaid for the delivery of said stone. The appellant answered, among other things, by way of counter-claim, “that said plaintiffs have neglected and failed to perform said agreement on their part, in that they did not furnish and deliver such stone promptly and punctually when the same was wanted and needed by this defendant for such purpose, as they had agreed and bound themselves to do, but compelled him to wait for such stone for an unreasonably long time after they had been requested and ordered by this defendant to deliver the same; that this defendant, at said times, as the plaintiffs well knew, was at work upon such building with a large number of men, and that by reason of such failure, fault, and neglect on part of said plaintiffs in not delivering such stone promptly and punctually, as they had so bound themselves and agreed to do, this defendant was actually and necessarily hindered and delayed in executing and completing such work, and by reason of said premises suffered and sustained great loss of time, * * * and necessarily incurred an expense of about $400 in that he was compelled to and actually did procure and purchase such stone elsewhere, all of which to the great damage of this defendant, for which he claims the sum of four hundred dollars.” The defendant prays that the plaintiffs' complaint be dismissed; and for judgment against the plaintiffs upon his counter-claim for $400 and costs. The plaintiffs replied to said counter-claim that they did deliver such stone as agreed and that the same was received by said defendant without objection. On the trial the respondents objected to any evidence of said counter-claim “because it does not state facts sufficient to constitute a counter-claim,” and the court sustained said objection, and directed the jury to render a verdict for the plaintiffs for the amount of their claim. On this appeal the alleged error of sustaining the objection to any evidence of said counter-claim is the main ground urged for the reversal of the judgment, and it is unnecessary to consider any other. The parts of the answer pertinent to this question have only been quoted. To sustain this ruling of the court, the respondents' counsel contends,--

1. That the counter-claim as to the breach, and damages named thereby, is too indefinite to constitute a substantive cause of action, and that it should allege with distinctness the nature of the damages sustained, and the definite damages sustained. In view of the well-established rule that, on a demurrer ore tenus the pleading should be liberally construed, we think that this counter-claim states the main facts which would constitute an affirmative cause of action. It states that by the unreasonable delay the defendant suffered damages in the sum of $400, by loss of time and expenses. The building was delayed by it, and the defendant had many hands employed, and that he was compelled to procure stone elsewhere, etc. If, as to these facts, the counter-claim is too indefinite and uncertain, the remedy is pointed out by the statute. A motion may be made to compel the defendant to make it more definite and certain. Section 2683, Rev. St.

2. That the counter-claim ought to state that the defendant was ready and willing to receive the stone at the proper time, and to pay for the same. As to his being ready to receive the same, the defendant alleges that he particularly ordered and requested the delivery of the stone under the contract; and, as to his being ready to pay for the same, his contract is sufficient as to his liability and the plaintiffs' security for payment on delivery.

The third contention is the main one: that the answer shows that the defendant received the stone without objection, and had used them, so that they could not be returned; and that therefore he could not counter-claim for damages for the delay. That which was recoupment in New York and some other states before the Codes, is now a counter-claim under the statute: (1) “A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.” Section 2656, Rev. St. The...