#### Gauthier and another, Respondents, vs. Braun and another, Appellants.

*October 10*—

November *5, 1952.*

*452For the appellants there was a brief by *Berk & Jarstad*of Green Bay, and oral argument by *Gordon K. Jarstad.*

For the respondents there was a brief by *Kaftan, Kaftan & Kaftan*of Green Bay, and oral argument by *Arthur J. Kaftcm.*

Fritz, C. J.

Upon the trial of the action, there was proof that defendant, Elmer Braun, entered into a written contract with Mr. and Mrs. Stee'no to build a dwelling for them for $7,500. Prior to entering into said contract, Braun had conferred with the plaintiff, Alex Gauthier, and requested that Gauthier do the excavating for the basement and the fur- . nishing of materials for defendants’ use in their construction of the dwelling for Steenos. Alex Gauthier testified that he told Elmer Braun he would have to figure whether plaintiffs could do the excavating and furnish the materials for $5,000, and that Braun should wait before he signed a contract with the Steenos. Gauthier further testified that after Braun first informed him of the proposed contract, he figured at the contract, and was worried that he could not do it for the $5,000 suggested; that Braun told Gauthier not to go to Steenos, but Gauthier went to them and told them that he might be off $500 or $1,000; that he was positive that he could not do it for $5,000. Braun talked to Steenos and signed the contract before Gauthier could talk to him about figures. When Gauthier told Braun about his conversation with the Steenos, Braun told Gauthier not to go to Steenos, because he had a contract with them, and he said if it were a matter of $500 or $1,000 he would pay Gauthier out of his share. Braun admitted that he did have this conversation with Gauthier, and never denied that on that occasion Braun stated he would make up the difference of $500 or $1,000. But Braun had signed a contract with the Steenos, before Gauthier could do the figuring and talk to Braun about the figures.

*453There was no written contract between the plaintiffs and defendants. Alex Gauthier testified that when the dwelling was partially finished, and the plaintiffs had furnished considerable materials, he told Braun that he wanted more money for the materials, but no agreement as to the price to be paid to plaintiffs for the materials had been reached at that time. Braun testified that Gauthier told him, “Well, that figure is all right.”

After the dwelling was completed, Elmer Braun and Alex Gauthier met in Gauthier’s office to discuss their accounts, and based upon what transpired at the meeting, Gauthier testified that Braun agreed to pay an additional $500 to Gauthier. He was the only person, of four persons present at the meeting, who testified that such agreement was reached.

On February 20, 1950, Gauthier, Braun, Ed Hansen, and Mrs. Johnson, employed by plaintiffs, met at plaintiffs’ office. Gauthier and Braun discussed the claims each had against the other, Mrs. Johnson supplied them with information, but Hansen did not pay too much attention to what was said. Gauthier and Mrs. Johnson testified positively that Elmer Braun agreed that the plaintiffs are entitled to $500 more than the $5,000 which the defendants had paid the plaintiffs. Elmer Braun denied that he had so agreed, and Ed Hansen testified that there was no such agreement. But Elmer Braun admitted that he told Alex Gauthier after he saw the Steenos, and also at the meeting on February 20, 1950, that if things were too rough on Gauthier, he would make a little allowance. Thus, Elmer Braun admitted the truth of the testimony of Alex Gauthier and. Mrs. Johnson’s testimony, that the defendants agreed to pay the plaintiffs the additional sum of $500.

The testimony presented an issue of fact for the court. We consider that his findings are amply sustained. When the *454accounts of the parties are balanced against each other, the defendants owe the plaintiffs $349.81, and the plaintiffs owe the defendants nothing.

*By the Court.*— Judgment affirmed.