Hennington v. Valuch

27 Wis. 2d 130 (1965)

HENNINGTON, Respondent, v. VALUCH, d/b/a PAUL VALUCH PLUMBING & HARDWARE, Appellant.

Supreme Court of Wisconsin.

March 1, 1965.

March 30, 1965.

*132 For the appellant there was a brief and oral argument by Stephen J. Hajduch of Milwaukee.

For the respondent there was a brief by Peregrine, Schimenz & Marcuvitz of Milwaukee, and oral argument by Mathias G. Schimenz.

WILKIE, J.

The sole issue presented on this appeal is whether the trial court erred in entering judgment notwithstanding the verdict for respondent. A judgment notwithstanding the verdict admits the findings of the verdict to be true, but grants judgment on grounds other than decided by the jury.[1] It is undisputed that the lateral from the Hennington building was not connected to the city's sewer as specifically called for by the contract. Indeed appellant admitted in his answer that "sewer connections were made to an abandoned sewer not in operation." Appellant defended the action on the ground that, while he did fail to tie into the proper sewer, the job that he did perform was done in a workmanlike manner. It is undisputed that what was done was done well. But appellant's reason or excuse for not performing is not germane to the question of performance or nonperformance. No matter how finespun the justifications for failing to perform become, the fact is that what appellant connected Hennington's lateral to was not a sewer. Thus appellant has failed to perform the terms of the contract wherein he promised: "Sewer to be connected at Curb." Upon the undisputed facts, respondent was entitled to recover for appellant's failure to carry out the contract.

By the Court.Judgment affirmed.

[1] Shumway v. Milwaukee Athletic Club (1945), 247 Wis. 393, 20 N. W. (2d) 123.