Simonz v. Brockman
| Decision Date | 22 June 1946 |
| Parties | SIMONZ v. BROCKMAN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the County Court of Waukesha County; Allen D. Young, Judge.
Judgment reversed and a new trial ordered.
Action on contract by Frank Simonz, d/b/a Badger Store Fixture Company, against John Brockman. From a judgment entered November 5, 1945, allowing a recoupment in favor of defendant and dismissing the complaint, the plaintiff appeals. The facts are stated in the opinion. Samuil Nissenbaum, of Milwaukee, for appellant.
James D'Amato, of Waukesha, for respondent.
The case is before us on appeal from a judgment of the county court of Waukesha county allowing a recoupment in favor of defendant and dismissing the complaint on the merits with costs to the defendant.
The complaint by paragraph 3 alleges:
‘That the defendant is indebted to plaintiff for goods, wares, and merchandise sold and delivered to him at his instance and request, from May 27, 1941, in the sum of Nine Hundred Fifty-four Dollars ($954.00), upon which there has been paid the sum of Six Hundred Dollars, ($600.00), and there is now due and owing the sum of Three Hundred Fifty-four Dollars, ($354.00).'
Defendant by answer admits the allegations of the complaint as to the residence of the defendant and states that his occupation is that of an ice cream manufacturer. The answer denies the allegations of par. 3 except ‘an expressed written contract was entered into by the parties and that there has been paid thereon $600.'
Defendant also interposes a counterclaim alleging that plaintiff by ‘express written contract’ agreed to sell and install and the defendant to pay for ‘certain goods, wares and merchandise’ and that the payment ‘was conditioned upon the performance of certain terms and agreements contained’ in the written contract; that ‘in compliance with said contract plaintiff delivered certain goods, wares and merchandise but that the said goods, wares and merchandise were not in conformity with’ the contract; that ‘plaintiff failed to install the goods, wares and merchandise in compliance with the terms' of the contract; that the plaintiff refused and neglected to perform ‘said terms and conditions' of the contract; and that as ‘a direct and proximate result thereof the defendant suffered a loss in the intallment and replacement of the goods, wares and merchandise and in the fulfillment of the terms of the contract as well as in loss of business and expense therefrom in the sum of $500,’ for which sum judgment against the plaintiff was demanded.
Upon this hodge-podge of pleadings, from which it could not be determined what the real issues of fact between the parties were, the case went to trial before the court without a jury. Upon the evidence the trial judge took the view expressed in a written decision that:
‘The defendant and the plaintiff entered into a contract of sale by the terms of which the defendant purchased from the plaintiff certain equipment for a soda fountain, including the fountain itself and a 1/2 H. P. compressor, for the sum of $954, and which was to be delivered to the defendant's place of business in the city of Watertown, and properly installed as an operating soda fountain; the articles were delivered on or about the 20th day of July, 1941, and the counters and soda fountain were put in place and the plaintiff attempted to install the compressor and connect the necessary pipes so that said soda fountain would work properly as an ordinary soda fountain should work and the sum of $600 was paid on the contract, thus leaving a balance of $354.
‘The plaintiff knew the use for which this merchandise was to be used and there was an implied warranty that when said merchandise was installed that it would perform the work of an ordinary soda fountain.
‘That said soda fountain was not properly installed in that the pipes and other mechanism were not properly connected or installed and that...
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Kolpin v. Pioneer Power & Light Co., Inc.
...Wis.2d 145, 158-60, 186 N.W.2d 250, 257 (1971) (trial court had not fully considered self-defense provision); Simonz v. Brockman, 249 Wis. 50, 54-55, 23 N.W.2d 464, 466 (1946) (issues existed which were insufficiently pleaded and proved as to amount recoverable by seller in contract case); ......
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Vollmer v. Luety, 88-0092
... ... -purposes, and frustration that dismissal would leave us with a strong belief that the issues had not been fully tried nor justice done"); Simonz v. Brockman, 249 Wis. 50, 54-55, 23 N.W.2d 464, 466 (1946) (issues existed which were insufficiently pleaded and proved as to amount recoverable by ... ...
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