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STACK CONSTRUCTION CO. v. CHENENOFF

28 Wis.2d 282 (1965)

STACK CONSTRUCTION COMPANY, Respondent, v. CHENENOFF and another, Appellants.

Supreme Court of Wisconsin.

October 5, 1965.

Attorney(s) appearing for the Case

For the appellants there was a brief by Love, Davis, McGraw, Huber & Brown of Waukesha, and oral argument by Robert T. McGraw.

For the respondent there was a brief by Grootemaat, Cook & Franke, attorneys, and Robert E. Cook and Thomas J. Drought of counsel, all of Milwaukee, and oral argument by Robert E. Cook.

GORDON, J.

The testimony establishes with clarity the fact that the fill which under the contract was to be "loaded and trucked from site at extra of $0.80 per yard" was not actually loaded or carried away. This phase of the work was simply not performed. The trial court recognized this fact but nevertheless concluded that the plaintiff "should not be penalized" because of it.

The record establishes that more than 107,000 cubic yards were actually cut by the...

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