Leach v. Koch

152 N.W. 453, 161 Wis. 236, 1915 Wisc. LEXIS 197

• Court: Wisconsin Supreme Court
• Decided: October 5, 1915
• Status: Published

Opinions

The following opinion was filed May 4, 1915:

Kerwin, J.

This action was brought to recover for a silo form at an agreed price of $175, alleged to have been sold and delivered by the plaintiffs to the defendants.

The answer, among other things, alleges that the plaintiffs and defendants entered into an agreement whereby the plaintiffs agreed to make for the defendants two silo forms to be used in defendants’ building and erecting concrete silos, one of said forms to be used for the building of twelve-foot diameter silos and the other to be used in building fourteen-foot diameter silos; that said forms were to be ready for delivery April 17, 1913. There are other allegations in the answer to the effect that the forms were never completed or delivered and that the plaintiffs informed the defendants that they could make but one, the fourteen-foot diameter silo form, and that defendants refused to accept the fourteen-foot form. The defendants deny generally the material allegations of the complaint and also set up a counterclaim to the effect that they were greatly damaged by the failure of plaintiffs to make the forms as agreed. The jury returned the following verdict:

“(1) Were the plaintiffs, by the agreement of the parties, bound to furnish defendants both a fourteen-foot and a twelve-foot silo form? A. No.

“(2) At the time when the defendants refused to accept the fourteen-foot silo form, was said fourteen-foot silo form completed so as to comply with the agreement of the parties ? A. No.”

Both parties moved for judgment on the verdict. The court below in deciding the case said that he was of opinion that on the special verdict, when construed in the light of what transpired on the trial, the plaintiffs were entitled to have the sum of $115 allowed for the fourteen-foot silo form and ordered judgment accordingly, which was entered, from which this appeal was taken.

It is not clear upon what grounds the court ordered judgment for the plaintiffs. It seems that the defendants objected generally to receiving the one silo form on the ground that plaintiffs refused to furnish two, but there was also evidence in the case to the effect that the fourteen-foot form was not constructed according to the agreement, and the jury in answering the second question so found.

The court below evidently thought that if there was a substantial performance of the contract that was sufficient, and that although the plaintiffs had not constructed the form in accordance with the agreement still they were entitled to recover what it was reasonably worth. We cannot discover any other theory upon which the court below ordered judgment.

The jury found that the contract was for one silo form, but the defendants were entitled to have that form constructed in accordance with the agreement and were not obliged to receive it unless it was so constructed. The jury found upon sufficient evidence that the plaintiffs’ contract was not performed and that they did not offer to deliver a silo form in accordance with the agreement. Such finding showed no right of recovery. It is argued by counsel for respondents that there was a substantial compliance. The jury found that the form was not according to contract and there is evidence that it varied substantially from the contract, therefore the defendants were not obliged to accept it. Under such circumstances and -upon the record the court below should have ordered judgment for the defendants.

By the Court. — The judgment of the court below is reversed, and the cause remanded with instructions to dismiss the complaint.