Graf v. Laev

97 N.W. 898, 120 Wis. 177, 1904 Wisc. LEXIS 55

• Court: Wisconsin Supreme Court
• Decided: January 12, 1904
• Status: Published

Opinion

Oassoday, O. J.

1. Error is assigned because tbe court refused to instruct the jury, in addition to tbe portion of the-charge given in tbe foregoing statement, as follows:

“If you find tbat tbe defendant, Laev, required plans and specifications for certain buildings, to cost about tbe sum of' $6,000, there can be no recovery by tbe plaintiff, Graf, unless tbe said buildings could have been erected for about tbe sum named.”

The parties differed widely as to tbe terms of tbe contract. Tbe instruction so requested is to tbe effect tbat, if tbe jury should find the contract to be as claimed by the defendant, then the plaintiff could not recover. The instructions given •and found in the statement of facts, in effect, covered all that was requested, and more, too. The jury were instructed to the effect that they could not find for the plaintiff unless they were satisfied by a preponderance of the evidence that the ■contract was in all respects as claimed by him; that, if they were not so satisfied or convinced, their verdict should be for the defendant; and that if they believed from a preponderance of the evidence that the minds of the parties did not meet as to the new work — as to the flat buildings — then they should find for the defendant. We must hold that there was no error in refusing such instruction.

2. Error is assigned because the court charged the jury as follows:

“If you find for the plaintiff- — that is to say, if you find that the contract was entered into between the parties as contended for by the plaintiff — then you will take up the con■sideration of the damages recoverable in this action; and I instruct you, as a matter of law, that, if you find for the plaintiff, the damages recoverable by the plaintiff in this action are the sum of $305.04.”

The amount so stated was the full amount of the contract price, as claimed by the plaintiff. True, the terms of the contract were in dispute, and accordingly the amount of the plaintiff’s compensation was in dispute. But it will be ob-served that under the charge of the court, as given, the jury were precluded from finding any damages in favor of the plaintiff unless they first found that the contract between the parties was “as contended for by the plaintiff.” The jury having found that the contract was as claimed by the plaintiff, 'the question presented is whether in assessing damages there should have been an abatement from tho full contract price. There is no question but that the plaintiff performed most of the services under the contract, as he claimed it to be, and was ready at all times to perform the balance. Prior to the time when tbe defendant refused to go on with, the job, the plaintiff declined to do work for other parties for the reason that he expected to perform his contract with the defendant.. As conceded by counsel for the defendant, the contract was for the personal services and skill of the plaintiff, as an architect, in planning and designing and superintending the work contracted for, and certifying to the sufficiency of the work of contractors, and the correctness of bills rendered. Such work could not be delegated to others. The plaintiff was undoubtedly entitled to recover the amount which he would have earned under such contract, less what he might in the meantime have earned elsewhere. Winkler v. Racine W. & C. Co. 99 Wis. 184, 188, 74 N. W. 793. In that case it was held that “in an action by an employee to recover damages for such wrongful discharge, the burden of proving in mitigation of damages that the plaintiff could have obtained' employment elsewhere is upon the defendant.” As there-said by way of quotation from an earlier case:

“In the absence, therefore, of any evidence that the party might have obtained any other employment, the law can adopt no other rule of damages than the contract price, unless there is some legal presumption that such other employment might be obtained.” Danley v. Williams, 16 Wis. 581, 586. See, also, Hildebrand v. American F. A. Co. 109 Wis. 171, 181, 85 N. W. 268.

In the case at bar the defendant failed to prove that the' plaintiff might have obtained such employment elsewhere, or-any fact in mitigation of the plaintiff’s damages. The case is unlike Nilson v. Morse, 52 Wis. 241, 9 N. W. 1, and other cases cited by counsel, where the performance of the specific work contracted for could be delegated to others. We find no error in charging the jury on the measure of damages.

3. As indicated in the statement of facts, the court charged the jury that in order to entitle the plaintiff to recover any compensation for making, preparing, and furnishing the-plans and specifications, be must sbow their delivery or tender of them to the defendant.' It is now claimed that the evidence is insufficient to support the verdict to the effect that such plans and specifications were so delivered or tendered. The plaintiff testified to the effect that, after the contract for removal and remodeling was completed, he had the originals in the office, and copies out with the contractors, and he believed the defendant also had a copy; that, when the defendant refused to go on with the flat buildings, the plaintiff had the plans and specifications of those buildings; that he had no reason to offer them to the defendant, and did not; that in the latter part of December, 1900, the defendant-said he was not going ahead with those buildings; that, when he said that, the plaintiff told him he could have the plans and specifications any time that he wanted to go ahead; that he could have them “any time he wished to go ahead with those buildings — any time in the future.” We are constrained to hold that the evidence was sufficient to sustain the finding of the jury to the effect that such plans and specifications were tendered to the defendant as stated in the charge of the court. Wright v. Young, 6 Wis. 127; Potter v. Taggart, 54 Wis. 395, 11 N. W. 678.

We find no error in the record.

By the Court. — The judgment of the circuit court is affirmed. •