Conover v. Knight

Cassoday, O. J. This case is here for the second time upon a question of mere practice. 84 Wis. 639. The ques [572] tion here presented is whether the trial court properly or improperly changed the answers of the jury to the tenth, twelfth, and fourteenth questions of the special verdict, as indicated in the foregoing statement. Immediately upon the rendition of that verdict, January 12, 1894, the defendant moved for judgment thereon in his favor; and the plaintiffs moved to set aside the verdict and for a new trial. The court took both of such motions under advisement; and thereafter the plaintiffs moved the court to change the answers of the jury to the tenth, twelfth, and fourteenth questions, as indicated, and that, when so changed, the plaintiffs have judgment upon the verdict so amended for $2,360, with interest, — -which last-named motion the court also took under advisement. After holding all three of the motions under advisement for nearly five months and a half, the court finally, and on June 27, 1894, by order, changed the jury’s answers to the tenth, twelfth, and fourteenth questions as indicated, and then ordered judgment thereon in favor of the plaintiffs and against the defendant for the amount mentioned, with interest and costs. Such change of the findings of the jury is sought to be justified on the ground that the first five questions in the special verdict were each and all answered by the court to the effect that the plaintiffs were architects, as alleged, that as such they rendered the services for the defendant at his request as alleged, that the defendant promised to pay the plaintiffs for such services four per cent, on the gross cost, which was $120,000, and had only paid thereon $1,300; and that, as there is no exception to any of such findings by the court, they must be regarded as verities in the case; and that such findings are sufficient of themselves to entitle the plaintiffs to judgment for a- larger amount than they recovered; and hence that the defendant is not aggrieved. The difficulty with such contention is that it ignores the issue made upon the plaintiffs’ cause of action and the findings [573] of tbe jury thereon in favor of the defendant. The answer is voluminous, but to the effect that, by the terms of the contract, the plaintiffs were to “ prepare full, true, complete, and necessary plans, specifications, working plans, and detail drawings necessary, proper, or convenient for the erection and completion ” of the building, and also superintend the entire construction and equipment thereof; that they wholly failed, neglected, omitted, and refused to perform said contract on their part in any respect whatever; that they made various false representations, statements, and pretensions in regard to the building and the requirements thereof, and that they were careless, negligent, and unskilful in their work to the defendant’s damage; that the plaintiffs failed to superintend the work; that the plans, specifications, and detail drawings were inadequate and inaccurate, and the defendant was obliged to procure new ones; that it became and was absolutely necessarj'- for the defendant to proceed to the erection, completion, and equipmeht'of said building on his own behalf, independently of the plaintiffs, but upon the same general plan originally intended; and that it was completed in substantial compliance with such plan, at a very much greater cost than had been agreed, to wit, the cost of $120,000. By the ninth, tenth, twelfth, and fourteenth findings, the jury, found, in effect, that the plaintiffs were discharged bj the defendant in October, 1890, for a good and sufficient reason; that they did not perform their part of said agreement substantially and' according to the terms thereof; and that nothing was due to them. As the question is here presented, we must treat all the evidence on the part of the defendant in support of these findings as undisputed; and, so treating the same, we must hold that there is evidence sufficient to sustain these findings. This being so, we must hold that the court invaded the province of the jury in changing the answers to the tenth, twelfth, and fourteenth questions. Dahl v. Milwaukee [574] City R. Co. 65 Wis. 371; Ohlweiler v. Lohmann, 82 Wis. 198. Besides, the eleventh finding of the jury, which has remained unchanged, is in direct conflict with the twelfth finding as-changed by the court, since the one finds that the plaintiffs did not give to the construction of the building the superintendence required by the terms of the agreement or understanding of the parties, and the other that the plaintiffs did perfonp. their part of the agreement substantially and according to the terms thereof. This being so, and the contract alleged in the complaint being entire, it is obvious, under numerous decisions of this court, that the special verdict, as so modified by the court, is insufficient to support the judgment. The printed case consists of 430 pages. The rule provides that it “ shall contain a complete abstract or abridgment of so much of the record ... as may be necessary to a full understanding of the questions presented for decision.” Eule YIII. To comply with this rule, we do not think it was necessary to have printed any more of the evidence than so much on the part of the defendant as would support the findings of the jury in his favor. In taxing costs in this court, the defendant is only to be allowed for printing the case 130 pages. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.