#### Wood, Appellant, vs. Town of Washington, Respondent.

*March 13*

March *31, 1908.*

*Contract: Partial performance:*Quantum meruit: *Practice: Reopening case: New issue: Witness: Cross-examination: Order of proof.*

*1.*Plaintiff sued for tlie value of services rendered. The evidence showed a contract to do certain work for a stipulated sum, which contract was never completed. There was no evidence of an acceptance of partial performance -hy defendant, nor of *300the value of the services. *Held,*that there could be no recovery of the sum stipulated nor of the value of the services.

2. Where plaintiff’s evidence showed that the work sued for was done under a contract for a stipulated sum and the trial of the case on that theory was closed and some of the witnesses had left the court room, *held,*that there was no' abuse of the discretion vested in the trial court to refuse to reopen the case to permit plaintiff to introduce evidence of the value of the services, as this would involve a trial of another and distinct issue.

¡5. In an action to recover a stipulated sum for work done under a contract, plaintiffs witness on cross-examination stated that he had not testified in the same action in the justice’s court that the contract was not completed. Defendant’s witness contradicted this. Plaintiff recalled his witness and asked him to state what he testified to in the justice’s court. This question being excluded, plaintiff then offered the minutes of the justice showing the witness’s testimony in that court. *Reid,*that both the question and the minutes were properly excluded, as not specifically meeting any testimony that had been offered by defendant.

Appeal from a judgment of tbe circuit court for Sauk county: E. Ray SteveNS, Circuit. Judge.

*Affirmed.*

This action was commenced in justice’s court to recover tbe value of services rendered tbe defendant town in 1898 and 1899 in filling tbe approaches to a culvert, in tbe sum ■of $50, wbicb tbe plaintiff claims tbe defendant agreed to pay. Erom a judgment of nonsuit in justice’s court an appeal was taken tó tbe circuit court, where tbe trial resulted in a verdict for tbe defendant. Erom tbe judgment entered thereon this appeal is taken.

*Albert Wood,*for tbe appellant.

*Hd. G.*Goitry, for tbe respondent.

Basheoed, J.

Tbe complaint states a cause of action for tbe value of services rendered by tbe plaintiff wbicb tbe defendant agreed to pay. On tbe trial tbe plaintiff offered no proof of the value of tbe services. Tbe testimony showed that tbe plaintiff entered into a contract with tbe defendant to do a certain púece of work for $50, and tbe court *301submitted tbe question to tbe jury upon tbat theory. Under proper instructions tbe jury found tbat tbe plaintiff never fulfilled tbe conditions of tbe contract. After judgment plaintiff moved for a new trial on tbe judge’s minutes, on tbe ground tbat tbe court erred in ruling that no evidence bad been given as to tbe value of tbe services rendered, and in ruling tbat evidence of value of sucb services was necessary other than tbe contract price. These rulings are assigned as errors here:

Tbe court properly overruled tbe motion for a new trial, as tbe evidence established a contract to do a definite amount of work at a fixed price. Tbe amount and character of tbe work was shown, but there was no proof as to its reasonable value. Tbe proof laid no foundation for any recovery except tbe full contract price. Tbe jury found tbat tbe contract bad never been completed, hence there could be no recovery of tbe sum stipulated. Tbe town bad never accepted tbe work, although from necessity it bad been obliged to make use of tbe road for public travel.

Other errors are assigned, only two of which it is necessary to review upon tbe record here presented. It is contended on behalf of the appellant that the court erred in refusing to permit him to offer evidence of the value of tbe work after tbe close of tbe testimony and before argument to tbe jury. At this stage of the trial the court stated to counsel tbat the only issue in tbe case was whether tbe work bad been completed according to the contract. Counsel for plaintiff' then stated that he claimed the right "to recover tbe value of the work, and tbe court replied there was no evidence upon which to base sucb recovery. Thereupon plaintiff suggested that he would like to offer testimony on that subject. The record states: “The testimony being closed and some of the witnesses having left the court room, the court refused, upon objection of defendant, to reopen the case.” We cannot say tbat this refusal was, under the circumstances, an abuse of *302tlie discretion, vested in the trial court. The plaintiff’s claim, as stated in his complaint, was for the value of the services, but he did not testify as to such value nor did any witness called in his behalf. On the contrary, the proof submitted by him showed that the work was done by him under the contract for a stipulated sum. The plaintiff, after tire trial of the cause upon that theory, sought to reopen the case upon another and distinct issue. This would have necessitated the calling of witnesses by the defendant, some of whom, it appeared, had left the court room. The court might well have concluded from the proceedings already taken that the trial of such issue would have been fruitless. There is no reversible error in this ruling. *Sibley v. Weinberg,*116 Wis. 1, 92 N. W. 427.

Error is also assigned upon the refusal of the court to permit the plaintiff to offer the minutes of the justice to prove the 'testimony given by the witness Cooney on the trial in that court. Mr. Cooney had been called as a witness for the plaintiff and had stated on cross-examination that he had not testified in justice’s court that the work performed by the plaintiff had not been completed as specified. One of the defendant’s witnesses testified without objection that Mr. Cooney had testified on the trial in justice’s court that the contract was not completed. Mr. Cooney was recalled by the plaintiff and asked to state what he testified to in justice’s court relative to the contract. An objection was properly sustained to this question, as it did not specifically meet any of the testimony that had been offered by the defendant. Plaintiff’s counsel then offered the minutes of Cooney’s testimony given before the justice. Tliis was properly ruled out for the reason already indicated, if for no other. Mr. Cooney, when recalled, was not asked the direct question if he testified on the trial in justice’s court that the contract in question was not completed, although he had already so testified on cross-examination. If any. part of the minutes of *303tlie justice Rad been competent it would only Rave been that relating to tRis specific testimony. TRe offer of this proof was too general and was properly refused.

We conclude tfiat tRere was no error in tRe rulings of tRe court complained of.

*By the Court.*— Judgment affirmed.