
    No. 423-73.
    May 27, 1977
    Employers Mutual Liability Insurance Company of Wisconsin
    
      Richard W. Galiher, Jr., attorney of record, for plaintiff. Galiher, Clarke, Martell and Donnelly, of counsel.
    
      Peter A. T. Sartin, with whom was Assistant Attorney General Barbara Allen Babcock, for defendant.
    Before davis, Judge, Presiding, nichols and bennett, Judges.
    
   "This case comes before the court on defendant’s motion, filed April 18, 1977, moving that the court adopt, as the basis for its judgment in this case, the recommended decision of Trial Judge Harry E. Wood, filed February 28, 1977, pursuant to Rule 134(h), plaintiff having failed to file a notice of intention to except thereto and the time for so filing pursuant to the Rules of the court having expired. Upon consideration thereof, without oral argument, the court adopts the conclusion of law and the reasons set forth by the trial judge in Part III of his recommended decision of February 28, 1977, (copies of which have been furnished to the parties) that plaintiff has failed to establish that defendant and the Credit Union agreed that defendant would provide guard service to the Credit Union commencing at 8:00 a.m. on designated days; that, rather, as reflected by both the intent of the parties and by the course of performance, the terms of that agreement were that defendant would provide guard service at the Credit Union commencing at 8:30 a.m. on such days; and, that accordingly, no breach occurred and plaintiff is not entitled to recover for this reason. The court does not reach or pass upon the legal issue discussed in Part II of the trial judge’s recommended decision.

"it is therefore concluded and ordered that plaintiff is not entitled to recover and plaintiffs petition is dismissed.”  