Dekowski v. Stachura

Eschweiler, J. The trial court properly ruled that when the jury found upon the evidence that plaintiff had practiced no fraud inducing defendants to enter into the original contract that disposed of the case and the plaintiff became entitled, under the express provision of the contract and as held by this court on the former appeal, to judgment against defendants for the sum of $500 stipulated in the contract to be liquidated damages for the withdrawal by either party. On November 11th the defendants did notify plaintiff’s agent of their intention to so withdraw and plaintiff’s right to the liquidated damages then sprang into existence, and nothing further was necessary to be done on her part in order to give her the right to demand and sue for such sum. As was held in the first appeal, the plaintiff could not, under such contract, demand specific performance, and therefore what she did or failed to do on November 29th, the day fixed in the contract for performance, is immaterial. That the plaintiff may have on the first trial mistaken her remedy was not a waiver of relief. Guenther v. Rutkowski, 176 Wis. 180, 182, 185 N. W. 639. That portion of the judgment awarding plaintiff the liquidated damages is therefore correct. We think, however, that the trial court was wrong in denying defendants the costs of the first trial and permitting the plaintiff to recover as against the defendants the [406] costs of both trials. The defendants asserted from the start that the plaintiff’s remedy, if any, was an action at law for damages and not one for equitable relief. The plaintiff, however, insisted on the first trial and on the first appeal here that she should have specific performance. When plaintiff on the second trial, although making no formal amendment of the complaint, nevertheless proceeded to assert her right to a jury trial and to recover the liquidated damages, it presented a situation where the trial court should have awarded the costs of the first trial to defendants under sec. 2836b, Stats, (ch. 219, Laws 1915), which provides that, in all cases where it shall appear to the court that a party has mistaken his remedy, costs shall be awarded against him and he shall be allowed a reasonable time within which to amend, and the amended action or proceeding shall then continue in the same court. This particular statute, rather than the more general and older statutes as to practice, was the more applicable here. This statute allows a party to amend as to remedy and then proceed, but charges the costs, which are statutory in amount, rather than terms, which may be discretionary, against him who has made such a mistake. While the final sentence of the same section, 2836b, providing that .judgment in all cases of mistaken remedy shall be respondeat ouster and for costs, the latter in the discretion of the court, might seem to qualify the absolute direction as to awarding costs in the first sentence supra, yet in any event we deem the situation here presented one- where the court should have awarded defendants rather than the plaintiff the costs of the first trial. It is urged by plaintiff that defendants cannot properly now present this point, they not having sought to review the clerk’s taxation of costs under sec. 2927, Stats. The matter, however, was more fully and properly presented to the trial court by the motion of defendants made before the taxation, and the entertaining of that motion and its denial [407] and the exception taken to such denial brings it for consideration here. By the Court. — Judgment as to damages affirmed, as to costs modified as stated. Appellants to have costs here.