#### Buehler, Respondent, vs. Staudenmayer, Appellant.

*March 14*—

April *5, 1911.*

*.Pleading: Counter claim: Amendment to conform to proofs: Contracts: Defective work: Acceptance: Appeal: Matters omitted from verdict: Presumption: Judgment: New trial, when ordered: Costs: Printed case: Reporter’s transcript.*

X Where a counterclaim was defectively pleaded but evidence in support of it was received'without objection, it was an abuse of discretion not to permit the pleading to be amended to conform to the proofs, if they established a cause of action.

*262. In an action to recover for work claimed by defendant to be-defective, if there was any dispute as to .the facts relied upon by plaintiff to prove acceptance or waiver, the question would be one for the jury, and if not covered by the special verdict a'' finding by the court must be presumed, under sec. 2858m, Stats. (Laws of 1907, ch. 346), in support of the judgment.

3. An ordinary person without special knowledge of the subject, who contracted for a cement wall or walk to be constructed in a good and workmanlike manner, should not be held to have-accepted the work merely because he happened to be present while it was being done, where he had no knowledge that the-contract was being violated.

4. Mere use of a defective foundation wall and the making of a-payment after knowledge of defects therein, is not to be deemed an acceptance of the wall as conforming to the contract, where-the contractor had previously been notified of defects which had then been discovered and had promised to rectify the same at. a seasonable time, and where other defects did not develop until afterwards.

5. Although there are no findings by the jury upon some disputed questions of fact, yet in this case the court deems that substantial justice will be done by modifying and affirming the judgr ment, rather than by reversing it and ordering a new trial.

6. For the printing of a case containing much unnecessary matter, in violation of Supreme Court Rule 6, no costs are allowed to-the appellant.

7. Under sec. 2949, Stats'. (1898), the cost of but one transcript of the reporter’s minutes, should be taxed.

Appeal from a judgment of the circuit court for Columbia county: Chestee. A. Fowler, Circuit Judge.

*Modified and' affirmed.*

The complaint sets forth two causes of action. The first' cause of action is brought to recover for work and labor performed and materials furnished in the construction of a-foundation, wall, walks, floor, and steps at defendant’s farm Plaintiff alleges that by reason of such work done and ma terials furnished the defendant became indebted to him in the sum of $204.40; that of this amount $174.50 has been paid, leaving a balance due of $29.90. For a second cause-of action plaintiff alleges that he entered into a contract with, *27the defendant whereby he was to manufacture for the defendant 2,000 cement blocks at an agreed price of fourteen cents, each; that such blocks were manufactured in accordance with the agreement and that the defendant refused to accept them; that after such refusal plaintiff succeeded in selling 600 of' the blocks at ten cents each to other parties, and he seeks to= recover damages in the sum of $220; making a total on the two causes of action of $249.90.

As a defense to the first cause of action defendant alleges-that plaintiff failed to complete the wall, walks, etc., and that the work done was unsatisfactory and unworkmanlike; that he has paid plaintiff in full for all services performed and materials furnished. Answering to the second cause of action, it is alleged that the cement blocks manufactured were-not of the size, shape, or dimensions ordered, and that in. other particulars the blocks were not according to specifications ; that defendant with men and teams went to plaintiff’s, place for the blocks, but refused to take them for the reasons stated. Defendant also counterclaimed for damages in the-sum of $50 on account of failure of plaintiff to properly perform the work and labor in the construction of the wall,, walks, floor, etc.,- and failure to complete the same in accordance with the agreement, and for time expended by himself,, his men, and teams in making the trip for the blocks.

By its answers to the questions submitted on the special verdict the jury found that the cement work was not done and completed in a workmanlike manner; that the difference between the reasonable value of the cement work done and what its value would have been had it been completed in a workmanlike manner was $90; that'the labor furnished by plaintiff was reasonably worth $’72.90 and the cement $115, and the use of a certain mixer $4.50; that a reasonable allowance-for defendant’s trip with men and three teams to get the cement blocks was $6. The jury also found that the plaintiff received nine and one-half cents each for the cement blocks.. *28'Thereafter defendant moved tbe court for leave to amend his counterclaim so as to increase the *ad damnum*clause therein from $50 to $97; which motion was denied, and judgment was entered upon the verdict in favor of the plaintiff for $90 ■damages and $71.95 costs, from which judgment defendant ■appeals.

The cause was submitted for the appellant on the brief of Aylward, Davies, *Olbrich &*Hill, and for the respondent on that of *Daniel H. Grady.*

BabNes, T.

A number of errors are assigned and argued ■on this appeal. But one of them warrants any discussion. The jury intended to permit the defendant to recover on his alleged counterclaim the sum of $90 as damages because of the failure of the plaintiff to do a good and workmanlike job •of cement work at the farm. It found that such sum represented the difference between the reasonable value of the cement work and what its reasonable value would have been had it been done in accordance with the contract. After the verdict the defendant moved to amend his counterclaim by stating the facts necessary to constitute a good cause of action and by increasing the *ad daunnum*clause from $50 to $97. 'The original pleading was defective in that it did not allege a contract and breach thereof or make any reference to or adopt the allegations of the defensive portion of the answer reciting such facts. The plaintiff opposed the granting of this motion an'd also made a motion to amend his reply to the counterclaim so as to plead acceptance of the work as a compliance with the contract and waiver of any right to claim damages because it was not done as agreed.

The court granted the motion of the plaintiff, and we assume that for this reason it refused to grant the motion of the defendant. If the court was correct in holding that the defendant had waived the right to recover the damages which .he was claiming, it would be futile to allow the amendment *29asked for by him. Tbe original counterclaim was not challenged by a demurrer to its sufficiency or by a demurrer *ore temos,*and nearly all of tbe evidence tending to show damages was received without objection, and no objection to any of it was taken on tbe ground that tbe counterclaim did not state a cause of action. Under these circumstances we entertain no doubt that tbe trial court would have allowed tbe counterclaim to be amended so as to conform to tbe proofs and to tbe verdict bad it been of tbe opinion that any recovery could be bad on tbe pleading as amended. To bold otherwise would, we think, have amounted to an abuse of discretion.

There was sufficient evidence to warrant the jury in finding as it did in reference to tbe character of tbe work done at tbe farm and in reference to tbe amount of damages suffered by tbe defendant as a result of poor workmanship. Tbe question of acceptance or waiver was not submitted to tbe jury. Such a submission would~be proper under appropriate instructions if there was any dispute as to what tbe facts were which were relied up.on to constitute acceptance. In tbe absence of a finding by tbe jury we would be obliged to presume one by tbe court in support of tbe judgment, under sec. 2858m, Stats. (Laws of 1907,.cb. 316).

So tbe real question in tbe case is: Do tbe facts, construed as favorably to tbe defendant as they reasonably can be, justify tbe conclusion that there was an acceptance of tbe work and a waiver of tbe right to claim damages for tbe breach of tbe contract which provided what tbe character of tbe work should be? In support of tbe conclusion of tbe trial court it is urged that tbe defendant accepted tbe work (1) because be was present while tbe work was being done and knew bow it was being done; (2) because be used tbe concrete wall with knowledge of tbe defective work done; and (3) because be made payments after tbe work was completed and with knowledge of the defective work.

Tbe work consisted of building a foundation wall for a *30barn, a floor or platform for a windmill, and some walks and steps. Tbe defects complained of were that the wall was neither straight, plumb, nor square; that the north wall was two inches too long and the south wall was three inches too short; that the wall was rough and had large holes in it and that a part of it did not set properly; that the cement walks ■cracked badly; and that the floor of the windmill settled, as well as some other minor defects.

The work was completed on November 7, 1907, and the first payment of $80 was made five days later. We do not find any proof that the defendant had actual knowledge of the defects when this payment was made. The evidence to show when the walks began to crack was very indefinite. 'The form or cribbing in which the cement wall was inclosed was not removed until November 15th, so that there was no ■opportunity to discover any defects in the sides of the walls prior to that time. It was easy enough to determine after the building was placed on the wall that either the wall or the building was not a rectangle, but the slight deviation could not have been very noticeable before, and there is no claim that defendant did know of it on November 12th. He had given the plaintiff the correct measurements and had a right to assume that they would be followed. In fact there was ■apparently very little discoverable in the way of defects on November 12th without making a critical examination of the work, and some of the defects were not discoverable on such ■an examination. The fact that the defendant was around while the work was being done we do not consider very significant. There is no pretense that he was an expert in the business of cement construction or that he had any knowledge that improper materials were being used or that the proper proportions of the different ingredients in the construction were not used or that there was an improper mixture of such ingredients. It would be unreasonable to say that, where an ordinary person makes a contract for the con*31struction of a cement wall or walk and stipulates tbat it must be constructed in a good and workmanlike manner, be accepts whatever may be tendered to him simply because he happens to be around while the work is being done, although he has no knowledge that the contract is being violated. So we do not discover any evidence in the record of acceptance up to ■and including the time when the first payment, was made. A second payment of $70 was made on November 21, 1907, and on the 13th of January following the defendant sold.to the plaintiff a load of oats worth $24.50. There was no agreement that this latter amount was to be applied on the cement contract, but the defendant never made any demand for payment for the oats and we will assume that he intended that the amount stated should be applied on the contract. It is undisputed that before the barn had been moved on to the •cement wall and before the second payment was made the defendant called up the plaintiff by telephone and in substance informed him that the work done was not right and did not ■comply with the contract and asked him to come out and inspect it. The plaintiff stated in reply that he could not then do so, but would come later. Thereupon the defendant informed the plaintiff that he would make no further payments ■until the work was made right. The plaintiff did go out to inspect the work the nest day and the parties do not disagree in the essential details as to what took place. The plaintiff does not admit that the defendant found fault with as many things as the defendant says he did, and he does not admit having agreed to do as much in the way of remedying alleged •defects as the defendant asserts that he did, but he does admit 'that he found defects of a somewhat serious nature and that he agreed to remedy at least some of -them. He stated, however, that as the season was far advanced the additional work should be done in the spring and that he would do it at that time, and to this the defendant assented. Plaintiff never went back to do the work which he -admits he agreed to do, *32and be gives as a reason for not doing so tbat some one told' bim tbat some other party bad made tbe repairs. It seems-to us that tbe acts of tbe defendant in using tbe foundation walls and in making payments under these circumstances did not amount to an acceptance of tbe work or a waiver of damages for poor workmanship. *Pormann v. Walsh,*97 Wis. 356, 72 N. W. 881; *Eaton v. Gladwell,*108 Mich. 678, 66 N. W. 598; *Ekstrand v. Barth,*41 Wash. 321, 83 Pac. 305; *Utah L. Co. v. James,*25 Utah, 434, 71 Pac. 986; *Trustees v. Broadfield,*30 Ga. 1; *Van Buskirk v. Murden,*22 Ill. 446; *Norris v. La Farge,*3 E. D. Smith, 375; *Morris v. Cummings,*26 Vt. 486; *Barker v. Nichols,*3 Colo. App. 25, 31 Pac. 1024; *Johnson Co. v. Lowe,*72 Mo. 637; *Moulton v. McOwen,*103 Mass. 587; *Pabst B. Co. v. Milwaukee,*126 Wis. 110, 105 N. W. 563. It must be remembered tbat tbe evidence does not show tbat all of tbe defects developed before these acts were done, and tbat as to some, if not as to all,, of those tbat bad been discovered the plaintiff promised to make bis work right, and tbat tbe defendant bad a right to-rely on such promise. Under these circumstances we think tbe trial court erred in bolding tbat there bad been an acceptance of tbe work as a compliance with tbe contract.

It seems apparent tbat tbe plaintiff was allowed to recover damages of four and one-balf cents per block on 2,000 cement blocks which tbe plaintiff manufactured for the defendant and which tbe latter refused to take. Tbe damages allowed to tbe defendant on tbe counterclaim were $90. So tbat tbe recovery of tbe plaintiff on bis second cause of action was offset by tbe recovery of tbe defendant for damages because of poor workmanship in doing tbe work in reference to which tbe first cause of action is brought. As to such cause of action tbe jury found tbat there was no express agreement covering tbe cost of the work. It found tbat tbe cement furnished was reasonably worth $115; tbat tbe labor of tbe plaintiff and bis men was reasonably worth $72.90, and tbat *33the use of tbe concrete mixer was reasonably worth $4.50, making a total of $192.40. Tbe admitted payments amounted to $174.50, leaving’.a balance due of $17.90, wbicb tbe plaintiff is entitled to recover. Tbe defendant is not entitled to any allowance for tbe use of teams in going to Portage for cement blocks. Tbe evidence shows that about 1,600 of tbe blocks might have been taken at that time, but that tbe defendant refused to take them because they did not comply with tbe contract. Tbe jury found against tbe defendant on this claim, so it follows that be might and should have loaded bis wagons with tbe blocks tendered him. Tbe evidence leaves some doubt in our minds as to whether tbe plaintiff manufactured tbe entire 2,000 cement blocks, although be so testified, and there is no evidence in tbe case wbicb, directly at least, contradicts such testimony. Tbe evidence is also somewhat hazy as to whether tbe plaintiff bad disposed of all tL.ese blocks at tbe time of tbe trial, Tbe jury made no funding on either question. In view of tbe fact that tbe court rendered judgment on tbe verdict, we must presume a finding by it to tbe effect that tbe entire 2,000 blocks were made and that all of them bad been sold at tbe time of tbe trial. Sec. 2858m, Stats. (Laws of 1907, cb. 346). We are unable to account for tbe judgment rendered on any other basis. Tbe contention of tbe respondent, that .the jury really deducted tbe $90 damages found from tbe value of tbe cement and labor as found by it, is untenable. There was no evidence in tbe case tending to show that by any possibility tbe work done and tbe material furnished were worth $90 more than tbe amount found by tbe jury. Tbe plaintiff in bis complaint claims only $204.40 on this first cause of action and tbe jury allowed $192.40, or $12 less than tbe amount claimed.

Because of tbe fact that no findings are made by tbe jury on some disputed questions of fact, tbe court has bad some doubt whether tbe judgment should be modified and affirmed *34or reversed, and the cause remanded for a new trial. We have concluded on the whole that it would be a kindness to both parties to save them the infliction of another trial and of possibly another appeal to this court, and that substantial justice will be done by modifying the judgment and affirming it as modified.

The printed case contains 211 pages besides the index. One hundred and sixty-seven pages are devoted to the evidence. A large portion of it is given by question and answer. A very large portion of it relates to matters that were settled by the verdict of the jury and in reference to which no question has been raised in this court. The examination of the evidence as presented has imposed a great deal of unnecessary labor upon us. The case is not an abridgment of the record so far as necessary to present the questions raised for decision, as required by Rule 6 of this court. The penalty for violation of the rule is that no costs shall be taxed in favor of the offending party for printing the case. Rule 44. This rule has been enforced in numerous cases and would be enforced more frequently if those who disregarded it always prevailed so that they became entitled to costs. Reference is made to the cases of *Griffiths v. Cretney,*143 Wis. 143, 126 N. W. 875; *Gerbig v. Bell,*143 Wis. 157, 126 N. W. 871; and *Hankwitz v. Barrett,*143 Wis. 639, 128 N. W. 430, and in those decisions will be found a reference to numerous other cases in which the- rules have been applied.

*By the Court.*— It is ordered and directed that the judgment be modified by reducing the amount of the plaintiff’s recovery to $17.90 damages, with interest thereon from November 7, 1907, together with such costs as the trial court shall in its discretion'allow pursuant to subd. 7, sec. 2918, Stats. (1898), and as so modified the judgment is affirmed. Costs are to be taxed in this court in appellant’s favor, but no costs are to be allowed for printing the case.

*35The following opinion was filed Juno 1, 1911:

Per, CuRiam:.

The appellant’s bill of -costs in this court contained an item of $97.50 paid the reporter for three copies of the reporter’s minutes. Objection was taken to its allowance, which was overruled, and the respondent moves for a re-taxation. The motion should be granted. . There is no warrant in law for such a charge. Sec. 2949, Stats. (1898), clearly contemplates that the cost of but one transcript of the reporter’s' minutes should be taxed. Bills of exceptions can only be taxed for in the circuit court under sec. 2921, Stats. (1898). Ch. 547, Laws of 1907 (see. 2873m, Stats.), was calculated to permit the court reporter to do most of the work of preparing a bill of exceptions, but it has not provided that his additional work in this regard shall be taxed against the losing party in this court.

The clerk of this court is directed to deduct from the bill of costs as taxed the sum of $65, and to allow the respondent $10 costs of motion.