Boden v. Maher , 95 Wis. 65 ( 1897 )

NewMAN, J.

The appellants allege five several grounds of error, which they deem sufficient grounds for reversal of the judgment: (1) In overruling the demurrer ore temos; (2) in receiving in evidence the engineer’s certificate of January 16, 1893; (3) in receiving in evidence the engineer’s certificate of May 31, 1894; (4) in refusing to direct-a verdict for the defendants; and (5) in directing a verdict for the plaintiff. '

1. Payment for the work was to be made on certificates of the assistant city engineer. The furnishing of these certificates was a condition precedent to the right to demand or sue for the price of the work. Hudson v. McCartney, 33 Wis. 331; Bentley v. Davidson, 74 Wis. 420; Wendt v. Vogel, 87 Wis. 462. The performance of such conditions precedent must be both alleged and proved, or their performance excused, before there can be a recovery. Oakwood Retreat Asso. v. Rathborne, 65 Wis. 177; Boorman v. Juneau Co. 76 Wis. 550; 4 Ency. of Pl. & Pr. 627, 630. So, it must be held that the complaint failed to show a right of recoveiy in the plaintiff. The demurrer should have been sustained.

2, 3. It was error to receive the certificates in evidence. They were irrelevant as proof of any fact made relevant by the pleadings.

4. The plaintiff failed utterly to show, by evidence competent to be received, a right to recover, and a verdict should have been directed for the defendants on that ground. But there was no case to require the direction of a verdict for the defendants, on their counterclaim. There was evidence tending to show that the plaintiff’s intestate had fully performed his contract, and that the work had been accepted by the defendants as a full performance of the contract in that respect. The evidence also tends to show that the work was completed within the time limited by the contract. The contract is somewhat indefinite and elastic as to the amount of work which was to be completed before September 1, 1892. The agreement was “to do all excavating which said parties of the first part [the defendants] desire to have done,” to be “ fully completed on or before September 1, 1892.” The plaintiff’s testimony certainly tends to show that so much of the grading as the defendants desired to have done before September 1,1892, was done before that date. If so, there was no breach of the contract, and no foundation for a recovery on their counterclaim. There certainly was enough evidence on this question to support a verdict for the plaintiff. So, it should, on that question at least, have gone to the jury. It was no error to refuse to direct a verdict on the counterclaim. Leiser v. Kieckhefer, ante, p. 4.

5. It was error to direct a verdict for the plaintiff. The verdict is supported neither by the plaintiff’s pleadings nor his proofs.

By the Qourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.