Lindenmann v. Kopczynski

KeewiN, J.

The civil court in a written opinion in the record nonsuited the plaintiff for the reason that it did not appear that plaintiff sustained, damage because the court held that he sold the property for as much as if the floors had been maple. The court also, inferentially at least, concedes that a contract was made as contended by plaintiff, but held that no damages were shown for the reason before stated. A' claim was also made that the plaintiff consented to a substitution of beech for maple flooring after the contract had been made and to that extent the contract was modified. The evidence does not establish a substitution of beech flooring for maple by consent of plaintiff. The burden was on defendant to show such change in the contract. Only two witnesses testified on the subject, plaintiff and defendant, the defendant affirming that a change was consented to and plaintiff denying it. Moreover, there are circumstances which corroborate the plaintiff on this point. So we are convinced that defendant, did not prove a change in the contract.

It' is, however, insisted that since there is no bill of except tions the evidence cannot be considered. Under the civil court act no bill of - exceptions was necessary in this case. The evidence was certified np by the clerk and was before tbe circuit court on a motion to affirm or reverse. Cb. 549, Laws of 1909, as amended. The record on appeal from the civil court to the circuit court, where there is no new trial in the circuit court, is before this court without a bill of exceptions on appeal from the circuit court to this court under the act establishing the civil court. Oh. 549, Laws of 1909, as amended. The evidence shows .that the beech flooring was much inferior to maple, and that the plaintiff is entitled to such damages as resulted from the breach. The plaintiff accepted the property after completion without knowledge of the breach and sold it before discovery. The theory of the court below that plaintiff lost nothing by the substitution of beech for maple flooring because he sold the property for the same price as if there had been no breach we need not consider. That question was not in the case. The plaintiff’s fiase was based upon a cóntract and breach and he was entitled to recover the damages which the law awards. Whether the plaintiff is liable to his vendee or not, or whether he received as much for the buildings as if they contained maple floors,' is wholly immaterial in this case. .

It follows that the civil court was in error in granting the nonsuit, and the court below erred in affirming the judgment of the civil court.

The plaintiff is entitled to recover such damages as he may be able to show were caused by the breach under the rule laid down by this court in the following cases: Foeller v. Heintz, 137 Wis. 169, 118 N. W. 543; Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Arndt v. Keller, 96 Wis. 274, 71 N. W. 651; Ashland L., S. & C. Co. v. Shores, 105 Wis. 122, 81 N. W. 136.

By the Court. — The judgment' of the court below is reversed, and the cause remanded with directions to the circuit court to reverse the judgment of the civil court and for further proceedings according to law.