Davelaar vs. Rockwell. Throop on Verbal Agreements, 155, § 78; Noyes v. Humphreys, 11 Grat., 636; Bresler v. Pendel, 12 Mich., 224; Sinclair v. Richardson, 12 Vt., 34; Brown v. Weber, 38 N. Y., 187. 3. It is questionable whether a contract submitting the matters arising under it can be revoked so as to conclude the other party, without an instrument under seal. McFarlane v. Cushman, 21 Wis.,401. J. V. V. Platto, for respondent: 1. The question was fairly presented to the jury to determine whether the extra materials furnished, and work done, are under the contract between the defendant and McPherson, or under a separate and distinct understanding and agreement between the defendant and the plaintiff. The instructions of the court were not excepted to, and the evidence was sufficient to sustain the verdict. 2. This court will not set aside a verdict unless there was a total want of evidence to support it. Laville v. Lucas, 13 Wis., 617; Moss v. Vroman, 5 id., 147; Dexter v. Cole, 6 id., 319; Harrison v. Doyle, 11 id., 283; Lockwood v. Stewart, 12 id., 628; Kuehn v. Wilson, 13 id., 104; Johnston v. Hamburger, id., 175; Edmiston v. Garrison, 18 id., 594; Atkins v. Scott, 19 id., 136; Eaton v. School District, 23 id., 374; Hull v. Augustine, id., 383; Barker v. Knickerbocker Life Ins. Co., 24 id., 630; Vilas v. Mason, 25 id., 310–325; Smith v. Wallace, id., 55; Fredendall v. Taylor, 26 id., 286; Van Doran v. Armstrong, 28 id., 236. 3. This court will not set aside a verdict found by a jury on conflicting testimony upon a question of fact fairly submitted, under a charge not excepted to, on the ground that there was a total want of evidence. Chamberlain v. Dickey, 31 Wis., 68; Janssen v. Lammers, 29 id., 88. DIXON, C. J. It was competent for the defendant, notwithstanding his contract with McPherson, to enter into a new and independent contract with the plaintiff for the doing of the work and furnishing of the materials for which this action is Bannister and others vs. Patty's Executors. brought. It was competent for the defendant to contract with plaintiff for such work and materials, and to bind himself to pay the plaintiff for them. The plaintiff could so far abandon his contract with McPherson, or waive his rights under it, and make a distinct contract with the plaintiff; and this case presents itself to the mind of the court as involving only a single question of fact, whether the defendant did so abandon the contract with McPherson and enter into a new and distinct one with the plaintiff. The question is, whether there was any evidence upon which the jury were justified in so finding. Whatever the impressions of the circuit judge may have been at the time of overruling the motion for a new trial, an examination of the record satisfies us that there was such evidence, and that the motion was rightly overruled. By the Court.-Judgment affirmed. BANNISTER and others vs. PATTY'S EXECUTORS. CONTRACTS. (1) Building contract, payment on certificate of superintendent. (2) Certificate withheld by collusion, no bar to recovery. (3) Production of certificate excused by fraud or mistake of superintendent. (4) Parties may waive performance of stipulations. (5) Effect of part payment, etc., as a waiver of superintendent's certificate. (6) Stipulation that damages shall be determined by superintendent, construed. (7) Effect of superintendent's certificate. PROMISSORY NOTES. (8) Contract for payment in, when action accrues. (9) Effect of waiver of notes. REFEREE. (10) Practice in setting aside report. 1. In a contract between plaintiffs and X., for the furnishing by the former of cut stone work in the erection of a building for the latter, provisions to the effect that X. should not be required to make any payment on such work until plaintiffs should produce to him the certificate of the superintendent of such building, "setting forth the Bannister and others vs. Patty's Executors. amount of stone furnished and its value, and that the same was to his satisfaction;" held to be valid, and to be binding on plaintiffs, unless they can show some legal excuse for not producing such cer tificate. 2. If the certificate of the superintendent be wrongfully withheld by collusion between him and X., its absence is no bar to a recovery under the contract for the materials furnished or work performed. 3. The production of the certificate may also be excused by showing that it is withheld by fraud or mistake of the superintendent, without showing collusion between him and X. Hudson v. McCartney, 33 Wis., 331. 4. The parties to such a contract may also waive the performance of any of its stipulations. 5. It appearing that X. paid more than fifty per cent. (and more than was due in cash) of the contract price of the stone furnished by plaintiffs to a certain date (being eight-elevenths of the whole) without requir ing any certificate from the superintendent, and that he did not afterwards demand such certificates for the residue of the work: Held, that he thereby waived the production of such certificates. 6. The contract provided that any loss or damages to X. from unnecessary delay of plaintiffs in furnishing the stone, or from their failure to perform their contract to the satisfaction of the superintendent, should be ascertained by the latter, whose finding thereon should be binding on all parties; and that the amount so found should be “deducted from the next regular payment or payments," etc. Held, that under this contract all claims for the deduction of damages were to be determined by the superintendent from time to time as the work progressed; and such claim could not be made for the first time, and the amount thereof determined in the lump by the superintendent, a year after the work was finished, and after an action had been commenced to recover the unpaid balance for such work. 7. After eight-elevenths of the stone work had been furnished by plaintiffs, and after their alleged delay in furnishing the same which caused most of the damage here complained of, the superintendent, without alleging or claiming any damages for breach of the contract, gave plaintiffs a certificate of the amount and value of the stone work so furnished, stating the value at the contract prices, but not stating in terms that the same was to his satisfaction. Held, (1.) That this must be regarded as in effect a certificate that the work was done to his satisfaction. (2.) That at least the giving of such certificate and the payment by X. of the whole amount due in cash for such work at contract prices, Bannister and others vs. Patty's Executors. without objection, must be regarded as a waiver of all claim for damages to that date. 8. By the contract, fifty per cent. of the price of plaintiffs' work was to be paid, when the whole was finished, by three notes of X., running one, two and three years respectively. There is no proof that the notes were ever demanded of X., and this action for the balance claimed by plaintiffs (less than fifty per cent. of the whole contract price) was commenced less than a year after full performance of the contract on their part. Held, that no cause of action had accrued when the suit was commenced, and it should be dismissed. 9. The stipulation for the giving of notes, being for plaintiffs' benefit, may be waived by them; and after the expiration of the time for which any such note was to run, payment of the amount not being made, they may maintain an action for the sum which would be due on the note, if it had been given. 10. The referee in this case having reported that plaintiffs were entitled to judgment for the amount claimed, the court did not err in setting aside such report. But it should also have found the facts showing that the action was prematurely brought and should be dismissed; or it might amend the referee's report so as to show those facts. APPEAL from the Circuit Court for Dodge County. Appeal from an order setting aside the report of a referee. The action was brought against the testator in his life time, to recover an unpaid balance of about three thousand dollars, alleged to be due the plaintiffs on account of stone and stone work furnished by them in 1867 and 1868, for a hotel erected by the testator in the city of Fond du Lac, and known as the "Patty House." The original defendant died during the pendency of the action, and the suit was duly continued against the executrix and executor of his last will and testament, the present defendants. The material and work were furnished and performed pursuant to a written agreement between the testator and the firm of Berry, Gilbert & Co., bearing date July 13th, 1867. Such firm was composed of the present plaintiffs and one Berry, but the latter retired therefrom in October, 1867, and transferred to the plaintiffs, the remaining partners, or to one of Bannister and others vs. Patty's Executors. them, his interest in all demands due the firm, and in the business thereof. The complaint in the first instance was very general. It alleged full performance of the written agreement by said firm and the plaintiffs, but it did not set out such agreement or the terms thereof. The answer contains a copy of such agreement, from which it appears that Berry, Gilbert & Co. agreed to furnish all of the cut stone and outside stone work for such hotel building, at certain specified prices or rates therefor, pursuant to certain plans and specifications prepared by one Birdsall, an architect and the superintendent of the building. Besides agreeing to furnish the stone for the first story, and for sills, water table, and belt or cornice, within four weeks, the firm agreed to furnish all of the stone as rapidly as it be might required, on the ground at the building, where directed, under the direction of Birdsall and in all respects to his satisfaction, and to obey the directions of the latter "in regard to said work, its manner of doing, time of performance, and all matters connected therewith." The contract further provided that if any of the work should, in the judgment of Birdsall, be improperly done, the same might, after notice to and neglect by the firm to repair it, be repaired or refinished by the testator, and the expense thereof deducted from the next regular payment due the firm. The agreement contains the following provisions concerning the powers of the superintendent, and the terms of payment for the work: "And it is further agreed that should any unnecessary delay occur in the furnishing of said stone by reason of the laches of the said parties of the second part, they shall pay to said party of the first part all damages for all loss that he may sustain by reason thereof, or other breach of the conditions hereof to be performed by said parties of the second part, or failure by them to comply with the terms hereof, or to furnish said |