Louis F. Fromer & Co. vs. Stanley and another.

Ans. Yes, sir." So it apgrounds for making such

your order for goods to be sent to John A. Stapleton upon your employers, Fromer & Co.? pears that one of the principal subsequent sales on credit was Stapleton's statement that he would discount the bills in January. But that was not the statement of a fact in præsenti, and hence was not the basis of an action for rescinding the sale. Warner v. Benjamin, 89 Wis. 290; Patterson v. Wright, 64 Wis. 289; Sheldon v. Davidson, 85 Wis. 138. It was, at most, a mere breach of promise; and yet, according to Alces' own testimony, he might not have sold the goods at all had not that promise been made. False representations which are not relied upon are not actionable. Fowler v. McCann, 86 Wis. 427. The same is true of a false promise, a mere expression of an opinion, a casual remark, not made during the negotiations, or with any intention of influencing the conduct of the opposite party. We must hold that the representations of Stapleton, assuming them to have been made as testified to by Alces and that they were false, were not of such a character as authorized the plaintiff to rely upon them, and avoid the sale in consequence of them.

4. It follows from what has been said that, upon the evidence before us, there is no ground for the recovery for any of the cigars actually ordered and received by Stapleton prior to March 21, 1895. As to any of such cigars there can be no ground for claiming a resale, but at most an extension of credit. If, as some of the testimony seems to indicate, Stapleton claimed to the plaintiff, on the day and year last mentioned, that a certain case of the cigars had never been ordered by him, and especially if he never in fact ordered them, then such case might be the subject of sale on that day. Appellants seem to concede that that case, never passed to Whitnall by the assignment, but claim that this action cannot be maintained by reason of certain rules of law; while the respondent seems to justify all the find

Boden vs. Maher and another.

ings which cover the one case mentioned. We are in no position to settle that controversy on this appeal, and hence the same is necessarily left open for the trial court.

5. The opinion expressed renders it unnecessary to determine whether this action of replevin can be maintained without returning the notes given for the goods replevied.

By the Court. The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.

BODEN, Administrator, Respondent, vs. MAHER and another,

Appellants.

December 19, 1896—January 12, 1897.

Contracts: Condition precedent: Pleading: Evidence: Right to recover

liquidated damages.

1. Where payment for grading lots was to be made on certificates of the assistant city engineer, the furnishing of such certificates was a condition precedent to the right to demand or sue for the price of the work, and the performance of such condition must be both alleged and proved, or its performance excused, before there can be a recovery.

2. Where the performance of such a condition precedent had not been alleged in the complaint, the admission in evidence of the engineer's certificates was erroneous.

3. A contract by which plaintiff's intestate was "to do all the excavating which" defendants "desired to have done," to be "fully completed on or before September 1, 1892," was satisfied by the doing of so much of the grading as the defendants desired to have done before said date, so that no recovery could be had by them under a provision for the payment of $10 per day liquidated damages for each day the work remained uncompleted after September 1.

APPEAL from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Reversed.

The action is on a contract for grading certain lots in the

VOL. 95-5

Boden vs. Maher and another.

city of Milwaukee, to recover a balance claimed to be due to the plaintiff's intestate for work done under the contract. The plaintiff's intestate made a contract with the defendants whereby he agreed to "do all excavating which said parties of the first part [the defendants] desire to have done upon certain premises known," etc., under direction of the assistant city engineer and the defendants, for an agreed price per cubic yard. The work was to be paid for on the certificate of the assistant city engineer "showing the work to be properly done and the amount of earth removed," seventy-five per cent. as the work progressed, and the balance six months after the completion of the work. The grading was to be completed by September 1, 1892. The plaintiff's intestate agreed that he would pay to the defendants, "as liquidated damages," $10 a day for each day that the work should remain uncompleted after September 1, 1892. A large amount of grading was done under the contract,much of it after September 1, 1892, and up to June 1, 1893, when the defendants discharged the plaintiff's intestate, and forbade further performance of the work. The grading was then substantially completed, only a few days' work remaining to be done. Payments were made from time to time as the work progressed, and without certificates of the assistant city engineer. January 16, 1893, a certificate of the assistant city engineer for all the work done previous to that date was furnished, and seventy-five per cent. of the price was paid. No further certificate was furnished before the commencement of the action. Another certificate, dated May 31, 1894, of all the work done after January 16, 1893, was produced upon the trial, and received in evidence, over the defendants' objection.

It was claimed by the plaintiff that all the work which the defendants desired to have done before September 1, 1892, was so done; that the work done afterwards was done under their direction and as they required it, and to their satisfac

Boden vs. Maher and another.

tion; and that they accepted it fully, as in compliance with the contract, and waived further performance by discharg ing the plaintiff's intestate. The defendants denied that the contract had been so performed, and claimed to recover the stipulated damages from September 1, 1892, to June 1, 1893. The defendants also insist that plaintiff's action is premature, because brought before the certificate of the engineer for the whole work had been furnished. There was a demurrer ore tenus to the complaint on the ground that it does not allege that such certificates had been furnished. There was evidence on the part of the plaintiff which tended to prove that the work had been done under the defendants' direction, and as and when they desired it, and to their satisfaction; and that they accepted it as a satisfactory performance of the contract; and that payments had been made during the progress of the work, without the certificate of the assistant city engineer; and that payments had been so made since the work was stopped, without objection that the contract had not been satisfactorily performed; while there was evidence on the part of the defendants which tended to controvert all these positions.

For the appellants there were briefs by Hoyt, Ogden & Olwell, and oral argument by L. M. Ogden.

For the respondent there was a brief by Rietbrock & Halsey, and oral argument by L. W. Halsey.

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 tenus; (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

Boden vs. Maher and another.

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 recovery 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 plaint