Toepfer v. Sterr

• Decision Date: 24 February 1914
• Citation: 156 Wis. 226,145 N.W. 970
• Parties: TOEPFER v. STERR ET AL.
• Court: Wisconsin Supreme Court

156 Wis. 226

145 N.W. 970

TOEPFER

v.STERR ET AL.

Supreme Court of Wisconsin.

Feb. 24, 1914.

Appeal from Circuit Court, Dodge County; Martin L. Lueck, Judge.

Action by Peter Toepfer against Albert Sterr and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The plaintiff contracted to furnish and put in place for the defendants certain machinery and equipment for a malting plant, the alleged reasonable value of which material and labor was $9,283.76. It was averred in the complaint that plaintiff had performed and that there was paid on account all of this sum except $597.89, for which judgment was asked. Among other articles furnished were four “steep tanks” and a “set of cold-air blinds for the kiln furnace.” The defendants alleged by way of answer that the plaintiff guaranteed to furnish certain “steep tanks” of 800 bushels capacity, whereas, the ones furnished had a capacity of only 750 bushels. It was further set forth in the answer that plaintiff agreed to furnish a complete new set of cold-air blinds for the kiln furnace, whereas the set furnished was of old material. The damages for these alleged breaches were placed at $2,000. The same facts were set up by way of counterclaim.

The jury found (1) that the steep tanks furnished had a capacity for steeping 800 bushels; (2) that the cold-air blinds furnished were not such as the contract called for; and (3) that the reasonable cost of remedying the defects therein was $100. From a judgment entered in accordance with the verdict, defendant appeals.Naber & Wheeler, of Mayville, and J. E. Malone, of Beaver Dam, for appellants.

Louis G. Bohmrich, of Milwaukee, for respondent.

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

The errors assigned are (1) erroneous rulings on evidence; (2) failure to instruct the jury as requested; (3) giving erroneous instructions; (4) refusal to change the answer of the first question from “yes” to “no”; (5) failure to grant a new trial; (6) compelling defendants to elect as to which of two measures of damages claimed on account of the steeping tanks they would rely on.

[1] The evidence warranted the jury in finding that the steep tanks furnished had 800 bushels capacity. This conclusion eliminates most of the errors assigned, because they relate to rulings on evidence bearing on the amount of damages claimed to have been sustained by defendants because the tanks were not of the agreed capacity, and to instructions given and refused upon the same subject. Under the verdict, the defendants were not entitled to any damages, and they could not have been harmed because of errors which might have tended to reduce their recovery had the jury answered the first question in the verdict differently.

[2] Bearing on the capacity of the steep tanks, Albert Sterr was asked: “Looking at book Exhibit 6, can you look and refresh your memory how...