Casgrain v. Hamilton

WiNslow, J. The appellants’ first contention is that the action is not referable. Under the decisions of this court the complaint must be held to state a cause of action upon contract, and not in tort. Although conversion is alleged, it is not charged to be wrongful or unlawful. This exact question was decided in Rawson Mfg. Co. v. Richards, 69 Wis. 643, and discussion is not necessary. The complaint being upon contract, the case is identical, in all essential particulars, with the case of Van Oss v. Synon, 85 Wis. 661, in which an order Of reference was held proper. Upon the merits of the case it is contended that several, of the items allowed to the defendant by the referee should not have been allowed. We are unable, however, to review these questions, because the bill of exceptions is nowhere certified to contain all of the evidence. The taxation of costs, however, was erroneous. This was an action at law upon contract, and in such an action the costs are limited to $25, exclusive of disbursements. R. S. sec. 2921. The excess of costs, which was improperly taxed, is $54.93, and as to this the judgment is erroneous. By the Court.— The judgment for damages is affirmed, and the judgment as to costs is reversed as to $54.93 thereof, [182] and affirmed as to the balance', without costs to either party, except that defendant must pay the fees of the clerk of this court.