Sucke v. Hutchinson

• Decision Date: 22 October 1897
• Citation: 97 Wis. 373,72 N.W. 880
• Parties: SUCKE ET AL. v. HUTCHINSON.
• Court: Wisconsin Supreme Court

97 Wis. 373

72 N.W. 880

SUCKE ET AL.

v.HUTCHINSON.

Supreme Court of Wisconsin.

Oct. 22, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by James Sucke and others against Bridget Hutchinson to recover on a contract for work and labor. From a judgment for plaintiffs, entered on report of a referee, defendant appeals. Affirmed.J. M. Clarke, for appellant.

Stark & Hansen, for respondents.

CASSODAY, C. J.

The complaint alleges, in effect, that on and between October 1, 1895, and July 1, 1896, the plaintiffs, as copartners, at the special instance and request of the defendant, sawed hardwood timber to the amount of 289,522 feet for the defendant, at the agreed price and of the reasonable value of $3.75 per 1,000 feet, making altogether $1,085.97; that no part thereof had been paid, except $884, paid at various times between June 1, 1896, and July 30, 1896; and that there was still due from the defendant, for such work and labor, to the plaintiffs, $201.97 and interest thereon from July 30, 1896; and demands judgment for that sum. The answer admitted the partnership and the sawing of some hardwood lumber for the defendant, but denied that such sawing was reasonably worth $3.75 per 1,000 feet, or that there was an agreement to pay therefor $3.75 per 1,000, and alleged that the plaintiffs agreed to saw the lumber for $3.50 per 1,000 feet, and that the defendant had paid or caused to be paid to the plaintiffs in full for lumber sawed for her or at her request, and denied every allegation not so admitted. The cause was thereupon referred to a referee, and, upon the close of the trial before him, he found and reported to the court, as matters of fact, in effect the same as alleged in the complaint, and, as conclusions of law, that the plaintiffs were entitled to judgment against the defendant for $210.28, with costs. Such findings and report of the referee were confirmed by the court, and judgment was entered thereon accordingly. From that judgment, the defendant brings this appeal.

It may be questionable, in view of the admissions in the answer, whether the denial of things not admitted raised any issue as to the amount of lumber sawed by the plaintiffs for the defendant. But, assuming that it did, still the positive testimony on the part of the plaintiffs is to the effect that they measured and kept account of the lumber as sawed, and entered the same upon their books, and that the amount was 289,592 feet, and that Hamilton, who represented the defendant in respect to the same, looked over such entries in their books, and apparently acquiesced in the amount of such entries. The defendant attempts to account for the disposition of the lumber to different parties, and in that way concedes that there was 257,575 feet; but such evidence is very unsatisfactory as to the exact amount of the lumber sawed. It...