Merriam vs. Field. find from the evidence that the defendant did warrant or guaranty the quantity to be 750 M. feet, and did warrant it to be of good, merchantable quality, free from culls, and should also find that there had been an honest measurement of the lumber, and it fell short, then the plaintiff was entitled to recover for the shortage; and that if the quality was not such as represented, the plaintiff was entitled to recover whatever would be a proper deduction for the lumber that was not merchantable; that, on the other hand, if the jury should find there was no such warranty as to quality and as to amount, then the plaintiff could not recover for the shortage; and that it was a question for them to decide upon the evidence, whether there were any such representation as to the quality and quantity, and whether there had been any failure in the quantity or quality. The natural effect of this charge was, that the defendant was not answerable unless he expressly warranted the lumber to be merchantable. It will be seen that the court submitted the question whether there were any representations made by the defendant in regard to the quality of the lumber, and directed the jury that if they should find that such representations were made, then the plaintiff would be entitled to recover whatever would be a proper reduction for lumber which was not merchantable. It is obvious that under this charge the jury might have found for the defendant on the ground that he made no representations as to quality when he sold the lumber. Indeed, the charge is only susceptible of the construction that, in order to recover for a defect in quality, it was essential for the plaintiff to show that the defendant expressly warranted the lumber to be of a merchantable quality. The liability of the defendant is clearly placed upon that ground. The circuit court seems to have misapprehended the effect of the decisions of this court heretofore made in the cause. When the case was first here, as reported in 24 Wis., 640, this Merriam vs. Field. court held that as the bill of sale contained an express warranty of title and against incumbrances, with no warranty that the lumber was merchantable, the presumption was that the writing expressed the whole contract as to express warranties; and that the plaintiff could not show that the vendor at the time of sale represented the lumber to be merchantable, without a violation of the salutary rule against varying and adding to written contracts by parol evidence. But this court likewise held that, inasmuch as the testimony tended to show that the lumber, when the bill of sale was executed, was in rafts in the Mississippi river at Quincy, Ill., where it could not be inspected by the vendee, if the sale was made under such circumstances, there was an implied warranty that the lumber was merchantable. When the case was here on the second appeal (29 Wis., 592), Mr. Justice LYON properly remarked, in the opinion then given, that this proposition was res adjudicata in the cause, and was no longer open for controversy. It seems unnecessary to remark upon the distinction between a warranty of quality which the law implies in case of a sale of lumber situated beyond the reach of the vendee's examination and inspection, and an express warranty of quality made by the vendor. The two things are confounded in the charge, or rather the court ruled that the defendant was not liable unless the jury found that he made representations as to quality which would amount to an express warranty. And consequently there was manifest error in the court's holding, as it did hold, that if the lumber, when the bill of sale was executed, was in the water where it could not be inspected, it was a question for the jury to determine from the evidence, whether there was a warranty of quality. Nor is it any answer to say that the error became immaterial because it appeared that the plaintiff, knowing what the lumber was, both as to its quality and quantity, took it by agreement as it was, in full satisfaction of the previous contract. It would be improper for us to express an opinion as Merriam vs. Field. to the effect of the evidence upon that question; and we shall refrain from doing so, except to remark that it is very far from being of so satisfactory a character as to render the error in the charge, which we have been commenting on, immaterial or harmless. True, in immediate connection the court told the jury that if they were satisfied from the evidence that the plaintiff had ample opportunity to see the lumber before it was rafted, and knew its quality, had examined it and was able to judge as to quantity and quality, they might find that he purchased the lumber knowing what it was. Assuming, as we may for the argument, but not deciding the point, that there was evidence sufficient to carry that question to the jury, still it is imposssble to tell whether the jury found for the defendant upon that issue or because there was no express warranty of quality established by the evidence. In regard to the claim for shortage, but an observation need be made. On the second appeal, this court held the contract ambiguous as to quantity. It was there said, whether the bill of sale called for 750 M. feet of lumber absolutely, or whether it was agreed between the parties that the rafts should be delivered and accepted for whatever lumber they contained-no specified quantity being fixed or contracted for,—were questions for the jury to determine from all the facts and circumstances. If the contract was for the sale and delivery of 750 M. feet, and the defendant failed to deliver the entire quantity, he would be bound to make good the shortage. In this case the exceptions to the charge of the court are incorporated in the bill of exceptions, which bears date March 9, 1875; but the exceptions do not appear to have been filed until March 22d, after a motion for a new trial, made upon the minutes of the judge, had been overruled. The counsel for the defendant insists that the exceptions must be disregarded, because too late. Sec. 2, ch. 194, Laws of 1874, provides that in actions thereafter tried, either party may, at any time before the close of the term of court at which the action Power vs. Rockwell. is tried, except to any part of the judge's charge to the jury, and such exceptions may be incorporated into the bill of exceptions and reviewed, the same as if made before the jury retires. There is no pretense that the exceptions in the present case were not filed before the close of the term, and it is stated in the bill of exceptions that at the time of the argument of the motion for a new trial, the reporter's minutes of the charge had not been written out, and no copy was in the possession of the attorney of the plaintiff. But the exceptions were filed in time to enable this court to review them. is surely so if any effect is given to the above provision. The practice there sanctioned may be most pernicious, as we are inclined to think it is; but it is impossible to say it was beyond the power of the legislature to authorize it. This By the Court. The judgment of the circuit court is reversed, and a new trial ordered. POWER VS. ROCKWELL. JUDGMENT: PRESUMPTION: COSTS. (1, 4) Presumptions to sustain judgment for costs, on appeal. JUSTICES' COURTS. (2,3) What actions cognizable therein. DISCRETIONARY COSTS: (5) In circuit court, when case cognizable by J. P. When verification of original complaint sufficient. 1. Where an appeal from a judgment brings up the question of costs in the trial court, and there is no bill of exceptions, that question must be determined from the pleadings and verdict; and all reasonable presumptions will be made to sustain the judgment. 2. In an action in the circuit court merely upon a quantum meruit for services, where the damages were laid above the jurisdiction of a justice's court, but the verdict for plaintiff awarded him less than $50, this court would be obliged to treat the controversy as one cognizable by a justice. Dunning v. Faulkner, 10 Wis., 394. 3. A justice cannot take jurisdiction of an action upon an express contract to Power vs. Rockwell. pay a certain price for a certain amount of labor and materials, by computation exceeding $600, averred to be wholly unpaid. 19 Wis., 193; 36 id., 605. 4. Where a complaint joined two causes of action, one upon a quantum meruit for services, and the other upon an express contract such as is above described, and the answer, after a general denial, pleaded a special defense to the latter count, confessing and avoiding such express contract, and the verdict was for less than $50, and the plaintiff had judgment for full costs: Held, that the judgment will not be reversed, because it does not appear that the verdict was not for an amount found due plaintiff on such express contract, over and above an amount for which defendant established his special defense, in which case the plaintiff was entitled to his costs. 5. Under ch. 60 of 1862 (which gives discretion to the circuit courts to allow costs upon verified complaints in cases within the jurisdiction of a justice, when the sum demanded shall exceed $100), the verification of the original complaint claiming over $100 is sufficient for the discretion of the circuit court to rest upon, though the complaint be afterwards amended in some particulars, not changing the cause of action nor reducing the amount claimed below $100. APPEAL from the Circuit Court for Milwaukee County. The complaint in this action contained two counts: 1. For hauling and placing upon a certain lot of the plaintiff and on streets adjoining, before December 1, 1870, 1,889 yards of earth and sand, at an agreed rate of thirty-five cents per yard. It is alleged that this was done at defendant's request; that after its completion he promised to pay for the work at the rate aforesaid; but that he has paid no part of the price, and is indebted to plaintiff for such filling, in the full sum of $661.15, with interest from the date above named. 2. For labor and services performed for defendant at his request, between November 1 and December 31, 1870, by plaintiff as real estate broker, in examining, appraising and inspecting a large number of lots and pieces of land (which are particularly described) in the city of Milwaukee, negotiating with the occupants thereof and other persons, etc. It is alleged that these services were worth $250, which became due December 1, 1870. It appears that the original complaint was verified, but |