Moritz v. Larsen

Lyon, J.

Several errors are alleged as grounds for a reversal of the judgment herein. These will be stated and considered in their order.

1. On motion of the defendant the jury was sent to view the premises. The judge of the court did not accompany the jury, and was not asked to do so. On authority of Fraedrich v. Flieth, 64 Wis. 184 , counsel for plaintiff claims that the failure of the judge to make the view is error. True, we said in that case that “ a view by a jury called in *573 an equity case to determine a question of fact should not be allowed unless the trial judge participates therein;” and it is also true that this is an equity case. Willer v. Bergenthal, 50 Wis. 474 . But the rule above laid down applies only to those cases in equity which the judge may decide without the intervention of a jury, and in which, if a jury intervene, the verdict is merely advisory. In this case the verdict has the force and effect, and is equally as conclusive as a verdict in a common-law action. The statute (R. S. sec. 3323) relating to lien suits provides that “ any issue of fact in such action shall, on demand of either party, be tried by a jury, whose verdict thereon shall be conclusive as in other cases.” The “ other cases ” here mentioned evidently mean actions at law. In this case a jury was duly demanded by one of the parties, and their verdict is not advisory, but conclusive. Furthermore, were, the verdict merely advisory, the failure of the judge to view the premises would not be error, because he was not requested so to do by the appellant. Such a request should be made before the motion for a view is decided, otherwise the failure of the judge to make a view will not be available as error. Hence the alleged error under consideration is not well assigned.

2. The plaintiff offered in evidence some document purporting to contain the testimony of the defendant Maren Larsen given on a former trial, but the court sustained an objection thereto. He was allowed, however, to prove by oral testimony what she testified to on that occasion. The testimony seems to have been offered for the purpose of showing that Hans Larsen was her agent in making the contract in question with the plaintiff, which contract he signed in his own name. It is an undisputed fact in the case that he was her agent, and negotiated and signed the contract as such. The court ruled correctly, but had the ruling been erroneous it could not have harmed the plaintiff.

3. It is objected that when the nonsuit was granted as *574 to Hans Larsen his answer disappeared from the case, and could not be resorted to in aid of any defect in the answer of Maren Larsen. It is also claimed that her answer, which is a general denial, is not sufficient to authorize her to show nonperformance by the plaintiff of the contract. We think otherwise. The complaint alleges performance, and the answer denies it. Testimony of nonperformance is directly responsive to that issue, and was properly admitted on behalf of the defendant. The court so ruled on the trial.

4. The objections that the special verdict does not cover all the material issues in the case, that it is not responsive to the questions submitted, that it is evasive and contradictory, and that portions of it are unsupported by the testimony, we think are not well taken. If there is anything uncertain in the first finding, to wit, that the contract was as claimed by the defendant, it may be made certain by reference to the answer of Hans Larsen, which states the defendant’s claim in that behalf. Although a nonsuit was ordered as to him, yet his answer remains in the record, and may be referred to in explanation of the verdict. Conceding, as is claimed, that there is an item of three dollars for extra work, concerning which there was no agreement that it should not be due until'the contract was completed, still we cannot, for that reason, disturb the special finding. The sum is too trifling. JDe minimis non curat lex. We are further of the opinion that the special verdict covers all the material issues litigated on the trial; that it is sustained by the evidence; and that under it the defendant is entitled' to judgment.

5. The plaintiff having failed to perform his contract, and the defendant’s liability for the amount claimed in this action depending upon such performance, the defendant not having accepted the building, it is clear that the plaintiff cannot recover quantum meruit.

*575 6. Certain instructions to the jury were proposed on behalf of the plaintiff, which the court refused to give. It is unnecessary to set out these in full. It is sufficient to say that every material and correct proposition of law contained in them was fully and clearly given to the jury in the general charge, to which no exception was taken.

The foregoing remarks dispose of all the alleged errors deemed worthy of notice. None of the errors are well alleged.

By the Court.— The judgment of the county court is affirmed.