Reiser v. Stauer

41 N.W. 706, 73 Wis. 477, 1889 Wisc. LEXIS 182

• Court: Wisconsin Supreme Court
• Decided: February 19, 1889
• Status: Published

Opinion

Cole, C. J.

The appellants claim that the judgment in this case should be reversed, (1) because the verdict is contrary to the evidence, and (2) for errors in the charge of the court.

There is ample testimony to support the verdict, as an examination of the bill of exceptions will show. It well may be, as counsel claims, that the finding is against what appears to be the weight of testimonjn But the jury had the right to weigh the evidence, and to credit the plaintiff’s testimony as against the conflicting evidence; and that testimony tended to prove that there was' an implied contract that he should be paid for his labor in digging the well, putting in the pump, and constructing the water-works. It is said the plaintiff had entered into a written contract by' which he was bound to perform these services for a stipulated salary. By the written contract he agreed to take entire charge and control of all engines, boilers, and pumps, and to see that such engines, boilers, and pumps were prop: erly and satisfactorily run and operated; also to keep said engines, boilers, and pumps in good repair and running order,— said engines, boilers, and punips being located and situated in the mill of the defendants at Prairie du Ohien. This was the precise service which, by the contract, he had undertaken to perform. Nothing is said in the contract about digging a well, putting in a pump, or constructing a system of water-works to be used for the protection of the property in case of fire. It is inconceivable how so important a matter should have been entirely omitted from the contract if the parties really intended that the plaintiff should superintend and take charge of these works for the salary he was to receive. For, as we have said, the contract is plain, and distinctly specifies the service the plaintiff had to perform.

But it is said the contract should be read in the light of surrounding circumstances, and that the acts and declarations of the parties themselves should have controlling ■weight in its construction. In this case such evidence was admitted not for the purpose of construing the contract, which the court below held to be perfectly intelligible in its meaning, but as bearing upon the question whether there was an implied contract that the plaintiff should be paid for his services in putting in the water-works. We think the court was entirely right in holding that the putting in of the water-works to protect the property from fire was not a service within the letter and intent of the contract as written, and it certainly is not.

There was evidence of declarations of the plaintiff that he considered this work as embraced in his contract. But upon that point the court directed the jury, if they should find from all the circumstances that, at the time this work was being done, the plaintiff assumed that it was work which came within the contract, that it ivas work he had the right to superintend and which it was his duty to superintend by virtue of his gendral employment under the contract, and that the defendants also so understood that he was doing that work as a part of his duty under the contract,— there could be no recovery. It seems to us that this was as favorable to the defendants’ contention as the law would allow. The written contract being definite, plain, and unambiguous in its terms; the matter of taking charge of or of putting in a S3''stem of water-works not even being mentioned in it; the plaintiffs work being clearly specified to be to take charge of and control and keep in repair all engines, pumps, and machinery located or situated in defendants’ mill at Prairie du Chien,— clearly defines and specifies the duty the. plaintiff was to perform. It is true he had entered into a contract to do certain things for a year for a stated salary. But, as the counsel on the other side justly observes, the contract did not call for the personal service of the plaintiff in the sense that his time belonged to the defendants. He might, as he did in fact do, employ others to run the engines and keep the machinery in repair; and so long as this business was properly attended to, to the satisfaction of the defendants, the contract was kept and performed on his part. If, in addition to the specified service, the plaintiff superintended the construction of the water-works under a reasonable expectation that he was to be paid for that work what it was worth, and if the defendants had reasonable grounds to believe, while the water-works were being constructed, that it was outside of the contract and that the plaintiff expected to be paid for it, having accepted the work they are liable to him for just compensation.

The circumstances from which the law will imply a contract were quite'fully stated by the court in its charge, and the whole case seems to have been fairly submitted upon the evidence. We perceive no error in the charge of which the defendants can complain, and the judgment of the circuit court must therefore be affirmed.

By the Court.— Judgment affirmed.