
    More and another, Respondents, vs. Milwaukee Monument Company, Appellant.
    
      October 6
    
    October 24, 1905.
    
    (1-3) Contract for building materials: Plans-and specifications: Extras: Brealcage. (4) Briefs in supreme court: Printing.
    
    1. Where the plans and specifications in accordance with which plaintiffs contracted to furnish and cut the stone for a mausoleum showed a floor under the catacomb distinctly marked “granite floor,” the fact that plaintiffs in their preliminary figuring overlooked such floor or failed to estimate it did not give them any right to extra compensation for the stone furnished therefor.
    2. The evidence in this case is held to establish the fact that the detail drawings and models (furnished in accordance with the contract) for the carving on certain stones were in accord with the general character of the carving shown upon the blue-print plans with reference to which the contract for the work was made, so that plaintiffs were not entitled to extra compensation on account of the elaborateness of such carving.
    3. Granite vases included in the contract having been broken in transportation to the place at which they were to be delivered by the plaintiffs, defendant was entitled to a deduction from the contract price of the amount reasonably necessary to make the vases perfect.
    4. Attention is called to an infraction of Supreme Court Rule IX by reprinting in appellant’s brief evidence contained in the printed case, though in this instance it is unimportant because the case alone contains more than the number of pages for which allowance can he made under sec. 1, ch. 365, Laws of 1905.
    Appeal from a judgment of tbe superior court of Milwaukee county: J. C. Ludwig, Judge.
    
      Modified and affirmed.
    
    Tbe plaintiffs are stonecutters at Montpelier, Vermont. Tbe defendant is a corporation engaged in manufacturing ■monuments in tbe city of Milwaukee. May 15, 1895, tbe defendant made a written contract with tbe executors of tbe estate of Valentine Blatz to furnish materials and erect a mausoleum in Forest Home cemetery ,at Milwaukee. June 8, 1895, tbe plaintiffs made a written contract with the defendant to furnish and cut the stone for said mausoleum, and deliver the same f. o. b. cars at Layton Park station, Milwaukee-county, in accordance with the plans and specifications therefor, for the sum of $16,300. This contract contained the following clause:
    “(3) The Milwaukee Monument Co. agree to furnish free of cost to Chas. H. More & Co. full plans, specifications, and models for the proper understanding and execution of the work, and to do so without delay; otherwise, Chas.-H. More & Co. shall not be held to their agreement as to time.”
    The complaint alleged performance of this contract by the plaintiffs and also the performance of extra work, caused by changes in the plans, amounting to $831, and admitted the receipt of payments thereon amounting to $14,951.87, and an allowance of $100 to the defendant for ironing the floor-stones of the vault, making a total credit of $15,051.87, and demanded judgment against the defendant for the balance. The defendant’s answer denied that any changes in the plans- and specifications were made, and denied that any extra work was performed except two items amounting to $125, and alleged that it had made payments exceeding the amount admitted by the plaintiffs in the. sum of $82.25. The answer also contained a counterclaim for damages caused by alleged imperfect workmanship and delay, amounting in all to-$1,484.98. To this counterclaim the plaintiffs pleaded a general denial.
    The issues were referred, and the referee found that the plaintiffs furnished and delivered stone in accordance with the-contract and were entitled to the contract price of $16,300; that extra work was required and performed by the plaintiffs to the amount of $831, making the total amount due to the-plaintiffs $17,131; that there had been paid thereon the sum of $14,951.87 in cash and freight bills paid by the defendant, over and above the admitted .allowance of $100, making a? total credit to tbe defendant of $15,051.87. Upon the counterclaim the referee found that the defendant was obliged to expend, in carving certain stones so as to make them conform to the plans and specifications, sums amounting in. all to $172.50, and that .defendant was also entitled to credit for $15.70 for castings, for rubbing floors, and for chilled iron ; also to credit for $90.67 for a carload of granite attached and held by the plaintiffs in Vermont; also to credit for $90.61 for the expenses of a trip made by one of the defendant’s employees to Vermont. The referee found that the defendant was entitled to no allowance for delays, and reported that the plaintiffs were entitled to judgment for $1,708.65, with interest. The court modified this report by allowing the defendant $82.25 additional for freights paid, and entered judgment for the plaintiffs for $1,616.40, with interest and costs, and the defendant appeals.
    Eor the appellant there was a brief by Turner, Hunter, Pease & Twmer, and oral argument by W. J. Turner.
    
    Eor the respondents there was a brief by McElroy & Esch-weiler, and oral argument by F. O. Eschweiler.
    
   WiNSlow, J.

The appellant attacks all 'of the items of alleged extra work allowed to the plaintiffs by the referee, amounting to $831, except two items thereof, aggregating $125; and the first question to be considered is as to the correctness of the items so challenged. Two of these items in dispute, amounting to $500, are for the extra expense of carving five* stones at $100 each; and the remaining three items, amounting to $206, are for six alleged extra stones under the catacombs and the cutting and joining thereof. The plaintiffs claim, and the court found, that all of these items were properly extras and not included in the contract.

As to the alleged extra stone, under the catacombs, we can entertain no doubt that the testimony is entirely insufficient. The contract was to furnish stone in accordance with the plans and specifications. These plans and specifications consisted of certain blue-prints and drawings, all of which are in evidence, and the correctness of which is not attacked. Upon one of these blue-prints, which represents a cross-section ■of the structure, there appears a floor under the catacombs, which is distinctly marked “granite floor.” The only other ■evidence on the question was that of the plaintiff More, who testified that “we did not estimate any stone under the catacomb — that is, any granite — until our attention was called to it by the flans which were sent on from them. I remember Mr. Lohr [defendant’s employee] making a sketch of the floor and stone under the catacomb, when he was here, from which we estimated. I do not think those stones could have been shown, nor that we estimated them, so that we called their attention to these stones and notified them just what they would cost.” Prom this testimony it very clearly appears that the stones named were indicated in the plans and specifications in accordance with which the plaintiffs contracted to •do the work. Such being the case, it can make no difference that the plaintiffs in their preliminary figuring overlooked the floor or failed to estimate it. In the absence of fraud or mistake (and none is claimed) the plans and specifications must govern.

As to the claim for $500 for alleged extra carving upon five stones, different considerations apply; but we conclude that the evidence fails to support this claim also-. Upon the blueprints carving was indicated upon these stones by fine white lines and tracery, which, however, were only intended to indicate generally the character of the carving, and not intended to constitute a distinct drawing from which the carving could be done, nor did they in fact do so. This is very certain from the evidence and from inspection of the blue-prints themselves. They indicated simply that there was to be carving of a certain general character, and that there must be further detailed drawings and models before it could be executed. Tbis is rendered more certain, if necessary, by tbat provision of tbe contract which requires the defendant to furnish “full plans, specifications, and models for the proper understanding and execution of the work.” The models here spoken of referred to full-size models of the carvings, and they were furnished as the work progressed. There was much correspondence concerning them; the plaintiffs claiming, as they now claim, that they were of a different character and more elaborate than the blue-prints indicated. The evidence supporting, this claim is very meagre, and it would hardly be profitable to review it. We have examined all the evidence on the subject carefully, and are forced to the conclusion that the evidence very clearly establishes the fact that the models and drawings furnished were in accord with the general character-of the carving indicated upon the blue-prints, except in the case of one of the stones; and for the change in this stone due-allowance was made in the findings.

It appears without dispute that two granite vases included in the contract were broken in transportation; but no allowance was made to the defendants, on the ground that the defendant had failed to show any liability on the part of the-plaintiffs for them. We have not been able to understand the-theory of this disallowance. The vases were a part of the contract, and were to be delivered at Layton Park. The plaintiffs have received credit for the entire contract price, which, of course, includes the price of the vases. They were-delivered in a broken condition, and could not be used until repaired. The evidence showed without dispute that the cost, of repairing was $90, and presumably this was the reasonable cost. It did not appear that the railroad company made good the breakage. Under these circumstances there was nothing-further necessary to be shown by the defendant. The plaintiffs had failed to perform that part of their contract which required them to deliver perfect vases, and the defendant was clearly entitled to a deduction from the contract price of the-. ■amount reasonably necessary to make tbe vases perfect. Tbe 'item of $90 should therefore bave been allowed to* tbe defendant upon its counterclaim.

As to tbe claim of defendant to recover $1,159.27 for recut-■ting a part of tbe stone on account of alleged defective cutting thereof by tbe plaintiffs, we find ourselves unable to say that tbe clear preponderance of tbe evidence is against tbe findings •of tbe referee and court. While there is much evidence to ■support tbe claim, there is also considerable evidence, and some of it quite persuasive in its character, in support of tbe ■findings.

Tbe appellant’s brief is unnecessarily long. It consists of more than ninety pages, and reprints a large part of tbe evidence. Tbe questions involved are merely questions of fact, and Eule IX of tbe rules of this court provides that “no extended discussion upon a mere question of fact will be permissible in any brief or at tbe bar, but tbe brief must refer io the printed case, where all tbe evidence bearing upon such leading facts or conclusions may be found.” This rule was intended to prevent tbe reprinting in the-brief of tbe evidence which has once been printed at length in tbe case, and to substitute therefor accurate references to tbe pages of tbe case where tbe evidence relied on may be found. Under tbe present law, which limits tbe amount to be allowed for printing to 150 pages (Laws of 1905, cb. 365, sec. 1), tbe redundancy of tbe brief is of no moment, because tbe case contains more than that number of pages; but tbe infraction of tbe rule is noticed for tbe purpose of calling tbe attention of tbe bar generally to tbe proper construction of tbe rule.

Tbe judgment must be modified by reducing tbe plaintiffs’ •allowance for extra work by tbe sum of $706, and making an additional allowance to tbe defendant of $90 on its counter-■41 aim for tbe broken vases, leaving tbe amount of plaintiffs’ judgment $820.40, with interest from October 11, 1896, to the date of tbe judgment, and costs, in the trial court as taxed, amounting in all to $1,322.46, as to which, sum the judgment must be affirmed, and reversed as to all exceeding that sum.

By the Court. — Judgment modified as indicated in the opinion, and affirmed as so modified, with costs to the appellant.  