Petition — Eisenberg v. Ed Margis Plumbing & Heating Co.
Supreme Court brief1978
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| FIL E > WT
77 : 2 ” 0 WAR 17 1978
EEE tthe » CLERK |
IN THE J
SUPREME COURT OF THE UNITED STATES
TERM, 1978
ED MARGIS PLUMBING AND
HEATING COMPANY, INC.,
Respondent,
=e
SYDNEY M. EISENBERG,
Appellant.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT
OF THE STATE OF WISCONSIN
M. L. EISENBERG & ASSOCIATES
Attorneys for Appellant
POST OFFICE ADDRESS:
1131 West State Street
Milwaukee, Wisconsin 53233
Telephone (414) 271-0931
INDEX
NATURE OF PETITION . . « «© © se e we @
QUEST IONS INVOLVED . . * . o . 7 . * *
STATEMENT OF FACTS . . 1. «© «© © eo © « @
ARGUMENT . . . . ° . . . e . . . * .
I.
Petitioner Was Not Allowed A Fair
Trial When The Entire Record Is
Viewed As AWhole ....+4-e+e«6-s
A. The Trial Court Is Afforded
Discretion In Evidentiary
Questions But These Rulings
Must Be Justified By Reason .
B. The Trial Court Erred In
Excluding Cross-Examination
Because It Was Beyond The
Scope Of The Direct Exam-
imation ..«-ccecereceee
C. The Trial Court Erred In
Sustaining An Objection
Based On The Incompetency
OF A Waemes8. « 2 oe eo ec oc
D. The Trial Court Erred In
Sustaining Objections
That Lacked Sufficient
Specificity ...«-c«eceeeese
E. Appellant Has Standing To
Raise These Issues On Appeal
Since Offers Of Proof Were
Made On All Issues. .....
ll
ii
F. Appellant Was Denied A
Fair Hearing Due To The
Extreme Partiality Of
The Trial Judge And His
Remarks In The Presence
Of The Jury. .
G. The Trial Court Erred
In Its Instructions To
The Jury
H. A Statutory Violation
Resulted From The Court's
Refusal To Record Closing
Arguments ...
II, The Denial Of A Fair Trial Violates
Petitioner's Constitutional Rights
Under The United States Constitution.
CONCLUSION
11
14
14
15
17
iii
Cases Cited:
Bernfeld vs. Bernfeld, 41 Wis. 2d
358, 164 N.W. 2d 259 (1971) .. 2+ +s
Boller vs. Cofrances, 42 Wis. 2d
170, 166 N.W. 2d 129 (1969) .....-.
City of Franklin vs. Badger Ford
Truck Sales, 58 Wis. 2d 641, 207
N.W. 2d 866 (1973). . . © 2 ee ew ww
Lawrence vs. Jewell Companies, Inc.,
53 Wis. 2d 656, 101 N.W. 2d
671 (1972) . + . . . . . . o . . > . . .
Marks vs. State, 63 Wis. 2d 769,
218 N.W. 2d 328 (1974). i ek ee Le ee
Puls vs. St. Vincent Hospital of
Hospital Sisters of Third Order
of St. Francis, 36 Wis. 2d 679,
154 N.W. 2d 308 (1967). . 2. 2. «+ + © «
State, ex rel, Hussong vs. Froelich,
62 Wis. 2d 577, 215 N.W. 2d
390 (1974) > > . >. >. 7 . 7 > >. > . . . *
State, ex rel, Mitchell vs.
Bowman, 54 Wis. 2d 5, 194
N.W. 2d 297 (1972). . 2. © es © © ew eo
State vs. Hoffman, 58 Wis. 2d 21,
205 N.W. 2d 386 (1973). ee ee ee e's
11
14
17
10
11
11
iv
State vs. Wind, 60 Wis. 2d
207, Zee N.W. 36 397 CGT i ss 6 se 10
United States vs. Fry, 304 F.
a6 S00 COREE) « 0 0 « tS ee bk eee 14
West Bend Mutual Insurance
Company vs. Christenson,
58 Wis. 2d 395, 206 N.W.
26 208 (IOVE). 636 60 10 ee ome See 14
Statutes Cited:
Wisconsin Statute 256.55 Reporting testimony.
(1) Except as provided otherwise in this
section, all testimony in all courts of
record in every action or proceeding,
contested, uncontested or ex parte
shall be reported.
(2) Proceedings had on forfeitures of
bail or deposit, pleas of guilty in
ordinance violation cases, and pleas
of guilty in misdemeanor cases need
not be reported except when the maxi-
mum penalty may exceed $500 or 6 months,
but the clerk shall keep a record in-
dicating the calling of the case, non-
appearance or plea made by the defen-
dant and action taken by the court.
(3) Voir dire examinations in any
civil or criminal action need not
be reported unless ordered by the
court. Opening statements and clo-
sing arguments shall be reported in
any action upon request of a party
Or upon order of the Court. A re-
quest to report opening or closing
argument shall be made on the record
before any such argument has
commenced.
(4) Arguments of counsel on
motions made during the course
of trial shall be reported, but
such arguments on motions made
before or after trial need not
be reported except upon order
of the court.
(5) A record shall be made of
the court's advice and defen-
dant's reply under s. 970.02(1)
(b).
(6) Preliminary examinations
shall be reported.
(7) The reporter shall be readily
available during all sessions of
court to take any proceedings the
court directs ..<«<«<esssseeee
Wisconsin Statute 261.08 Substitution
of Judge. (1) Any party to a
civil action or proceeding may
file a written request with the
clerk of courts for a substitution
of a new judge for the judge as-
signed to the trial of the case.
The written request shall be filed
on or before the first day of the
term of court at which the case is
triable or within 10 days after
the case is noticed for trial.
Upon filing the written request,
the filing party shall forthwith
mail a copy thereof to all parties
to the action and to the named
judge.
(2) After the written request has
been filed, the named judge shail
112
vi
have no further jurisdiction
in the action or proceeding
except to determine if the
request is correct as to form
and timely filed, and the named
judge shall be disqualified and
shall promptly request assign-
ment of another judge pursuant
to s. 251.182.
(3) No party shall be entitled
to file more than one such writ-
ten request in any one action,
nor many any single such request
name more than one judge. For
purposes of this subsection par-
ties united in interest and
pleading together shall be con-
sidered as a single party, but
the consent of all such parties
is not needed for the filing by
one of such party of a written
request.
History: 1971c.46,138,296. . . ... 11, 114, 115
Wisconsin Statute 885.16 Transactions
with deceased or insane persons
No party or person or his own
behalf or interest, and no person
from, through or under whom a par-
ty derives his interest or title,
shall be examined as a witness in
respect to any transaction or com-
munication by him personally with
a deceased or insane person in any
civil action or proceeding, in which
the opposite party derives his title
or sustains his liability to the
cause of action from, through or
under such deceased or insane person,
vii
or in any action or proceeding
in which such insane person is
a party prosecuting or defend-
ing by guardian, unless such
opposite party shall first, in
his own behalf, introduce tes-
timony of himself or some other
person concerning such trans-
action or communication, and
then only in respect to such
transaction or communication
of which testimony is so given,
or in respect to matters to
which such testimony relates.
And no stockholder, officer
or trustee of a corporation.
in its behalf or interest,
and no stockholder, officer
or trustee of a corporation
from, through or under whom
a party derives his or its
interest or title, shall be
so examined except as afore-
said. . + . . . . * « . . 7 . . . . . +
Wisconsin Statute 885.17 Transactions
and
with deceased agent. No party
no person from, through or under
whom a pa derives his interest
or vente. “aes be examined as a
witness in respect to any trans~-
action or communication by him
personally with an agent of the
adverse party or an agent of the
person from, through or under
whom such adverse party derives
his interest or title, when such
agent is dead or insane, or other-
wise legally incompetent as 4
viii
witness unless the opposite
party shall be first examined
or examine some other witness
in his behalf in respect to
some other transaction or
communication between such
agent and such other party or
person; or unless the testi-
mony of such agent, at any
time taken, be first read or
given into evidence by the
Opposite party; and the, in
either case respectively,
only in respect to such trans-
action or communication of
which testimony is so given
or to the matters to which
such testimony relates. ........ 8
Wisconsin Statute 901.03 Rulings
on evidence (1) Effect of
Erroneous Ruling. Error may
not be predicated upon a ruling
which admits or exludes evidence
unless a substantial right of
the party is affected; and
(a) Objection. In case the
ruling is one admitting evi-
dence, a timely objection or
motion to strike appears of
record, stating the specific
ground of objection, if the
specific ground was not ap-
parent from the context; or
(b) Offer of Proof. In case
the ruling is one excluding
evidence, the substance of
the evidence was made known
to the judge by offer or was
ix
apparent from the context within
which questions were asked.
(2) RECORD OF OFFER AND RULING,
The judge may add any other or
further statement which shows
the character of the evidence,
the form in which it was offered,
the objection made, and the ruling
thereon. He may direct the making
of an offer in question and answer
form.
(3) HEARING OF JURY. In jury
cases, proceedings shall be con-
ducted, to the extent practicable,
so as to prevent inadmissable evi-
dence from being suggested to the
jury by any means, such as making
statements or offers of proof or
asking questions in the hearing
the jury.
re make tains. Nothing in this
rule precludes taking notice of
plain errors affecting substantial
rights although they were not
brought to the attention of the ‘aa
judge . se eee ree eo 2 eo © © © & Os Ds
Wisconsin Statute 906.01 General
rule of competency. wand person
is competent to be a witness
except as provided by ss.885.16
and 885.17 or as otherwise pro- ‘
vided in these rules. ..++-eeee-s
IN THE
SUPREME COURT OF THE UNITED STATES
Term, 1978
ED MARGIS PLUMBING AND
HEATING COMPANY, INC.,
Respondent
-Vs-
SYDNEY M, EISENBERG,
Appellant
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF WISCONSIN
NATURE OF PETITION
This is a Petition from a decision filed
October 4, 1977, by the Wisconsin Supreme Court
and an Order denying a rehearing thereof dated
January 20, 1978, which resulted from an appeal
from the Order entered in the above entitled
matter on the 19th day of November, 1975, by
the Honorable J. K. Callahan, County Court Judge,
Milwaukee County, Wisconsin, ordering judgment
for the Plaintiff in the amount of $3,279.71
together with interests and costs.
QUESTIONS INVOLVED
Was Petitioner denied a fair trial when
the record is viewed as a whole?
The trial court and the Wisconsin Su-
preme Court answered this in the nega-
tive.
Was there a denial of Petitioner's
constitutional rights under the United
States Constitution in that due process
‘Was not afforded?
The trial court and the Wisconsin Su-
preme Court answered this in the nega-
tive.
STATEMENT OF FACTS
This case arose out of a job undertaken by
a Wisconsin corporation upon the premises owned
by the Defendant-Appellant, Sydney M. Eisenberg.
The business mentioned above was a plumbing firm,
the building that the work was done on was an
apartment complex at 803-813 East Wells Street,
Milwaukee, Wisconsin.
The work was done by the Plaintiff corpora-
tion without any plans, written authorization and
contained many costly errors and mistakes. Thus,
when the defendant learned of the amount of the
bill, not only was he suprised at the fact that
he should be charged at all for work he had not
authorized, but when the poor quality and literal
destruction of the property became known, he de-
manded compensation for his damage.
Plaintiff sued on a contract that has never
been established. Although the plaintiff corpora-
tion is currently in bad standing, it was allowed
to take the case to trial and ultimately receive
judgment in its favor. This was the result of a.
series of prejudicial comments and errors by the
trial court. The record evinces a complete dis-
regard for defendant-appellant's rights during
the course of the trial.
The trial judge was retiring. There had
been two previous mistrials before another judge,
and he stated that the case would be completed by
him without mistrial as his last case. The
court's mistreatment of appellant is well noted
in the written record.
The basic circumstances on which this law-
suit is based is the installation of a gas line
in each of two buildings which are erected paral-
lel to each other. The purpose of the owner in
buying replacement heaters was to have two gas
hot water heaters placed on the courtyard side
of both buildings, thus freeing the present lLaun-
dry rooms, located on the outer edge of the build-
ings, to be converted to apartments. There were
gas mains on both ends of both buildings. When
the respondent corporation decided to usurp this
job, they placed the water heaters in the laundry
rooms on the outer edges of the buildings, oppo-
site to the yard between the two buildings. Thus,
they successfully destroyed the concept of convert-
ing these outside rooms into apartments.
To make matters even worse, instead of run-
ning a short gas pipe down from the gas outlets
on the outer edges of the buildings, they ran
piping from the outlets in the courtyard side
clear across each entire building to the opposite
gas outlet, thus necessitating a long and expen-
sive piping operation ultimately resulting in the
ridiculous charge made by the plaintiff.
On top of all of this, a large pipe now runs
across the first floor rooms in this building and
is low enough to cause injury to tall people. If
the plaintiff claims he was told by the janitor
where to place the replacement heater, there al-
ready was a gas outlet only a few feet away in
each washer-dryer room to which he could have
connected to without running pipes across open
hallways all across the complete building to the
gas connection on the other side. Connections
could have been made for a total of $310.00, ac-
cording to the only independent expert, engineer,
R. Walter Gross (R.P. 427), connecting to the
closest gas connection. Plaintiff has a judgment
$4,401.48 for running several lengths of gas pipe
to gas heaters it did not furnish. For these rea-
sons, the defendant-appellant filed his counter-
claim.
As mentioned above, the judge made prejudicial
comment, after prejudicial comment, excluded per-
missable evidence favorable to defendant, gave
erroneous instructions to the jury and committed
other preposterous errors ultimately foreclosing
any possible chance to gain a favorable jury
verdict.
The trial court erroneously permitted defense
counsel to introduce without a foundation, a D 1n
and Bradstreet credit report concerning defendant -
appellant, showing among other things, defendant's
refusal to answer the credit reporter's questions,
all to prejudice defendant.
Upon appeal to the Wisconsin Supreme Court,
this decision of the trial court was affirmed.
In reasoning, the justices frankly admitted that
many errors had occurred, but escaped reversal by
concluding that taken separately the errors were
not prejudicial. It is petitioner's ascertain
that not only are the errors by themselves pre-
judicial, when taken a whole, due process of law
was violated and justice was not afforded the
Petitioner. Clearly a fair trial did not result.
Thus, petitioner, now seeks a Writ of Cer-
tiorari to allow him to receive his fair day in
Court as he is justly entitled.
ARGUMENT
Re Petitioner Was Not Allowed A Fair Trial When
The Entire Record Is Viewed As A Whole.
A. The Trial Court Is Afforded Discretion
In Evidentiary Questions But These
Rulings Must Be Justified By Reason.
There can be no question that under the Wis-
consin Rules of Evidence the Trial Court is given
discretion to make determinations on the admissa-
bility of evidence. However, as in all cases of
judicial discretion it is error to abuse such
discretion and under Section 901.03, if such ef-
fects a substantial right of either party or con-
stitutes plain error it is ground for dismissal
or a new trial.
The term "abuse of discretion" has been de-
fined as follows, by the Wisconsin Supreme Court:
"The term abuse of discretion exercised in
any case by the trial courts, as used in
the decisions of courts and in books, im-
plying in common parlance a bad motive or
wrong purpose is not the most appropriate.
It is really a discretion exercised to an
end or purpose not justified by and clearly
against reason and evidence." Bernfield
v. Bernfield, 41 Wis 2d 358, 365, 164 N.W.
2d 259 (1971).
The trial of this case indicated a mltitude
of rulings, excluding virtually all of defendant's
necessary evidence, having no basis in reason and
law. The reasons given by the court for these
rulings were either clearly erroneous or had no
basis in reason. Due to the fact that appellant
the most
was utterly barred from presenting even
trivial foundation for his case and counterclaim,
he asserts that it is grossly evident that the
trial court's rulings affected his substantial
rights and amounted to plain error.
B. The Trial Court Erred In Excluding The
Cross-Examination Because It Was Beyond
The Scope Of The Direct Examination.
f Alma
In the course of cross examination o
Margis by Mr. Eisenberg the following dialog took
place.
find out
MR, EISENBERG: "When did you first
that the defendant was very unhappy and discouraged
with what had taken place?"
MR. KREMBS: "I object to the form of the
question. It is too general to the topic and no
reference to time."
COURT: "Sustained. It has nothing to do
with the facts of cross-examination. That ques-
tion was not brought out on the original question-
ing."
MR, EISENBERG: "Is it the court's ruling
that cross-examination can't extend beyond the
direct examination based on the Supreme Court's
interpretation of the evidence?"
COURT: Yes. (R.p. 248, App. p. 28)
has specifi-
The Supreme Court of Wisconsin
cally rejected and eliminated ~_ Eospenren co
clud evidence. Boller vs. Confrances,
Wis 4. 170. 166 N.W. 2d 129 (1969). Im that
decision, the Supreme Court adopted the wide open
rule or cross-examination, whereby it was left
within the discretion of the Trial Court to deter-
mine the limits of cross-examinatioa. In this
circumstance, however, the Trial Court placed its
reasoning entirely on the "beyond the scope of
the direct" doctrine. Appellant asserts that this
constitutes an abuse of discretion.
This erroneous ruling effects the right of
the appellant to establish his case and counter-
claim in a court of law. There was a proper ob-
jection raised to the denial of this examination,
(R. p. 248, App. p. 28). Therefore, under Section
901.03, appellant asserts that this ruling consti-
tutes error,
C. The Trial Court Erred In Sustaining An
Objection Based On The Incompetency Of
A Witness,
During the redirect examination of Frederich
Hornbach, appellant's graduate engineer property
manager, the following testimony took place,
MR. EISENBERG: In that letter did you say
you were not going to pay him anything?
MR. KREMBS: I object. This individual is
incompetent,
COURT: Objection sustained.
(R.P. 496; see also R.p. 526).
Appellant contends that this ruling is er-
roneous on its face. Section 906.01 entitled
General Rule of Competency reads as follows:
) witness
"Ev erson is competent to be a
sen a provided by ss. 885.16 and 885.17
or as otherwise provided by these rules.
tions deal with the "dead man's
BEL gpk amg bearing here. The rule of e-
allowing a person's testimony because of ——
tency clearly is not the law in Wisconsin. wa
v. State, 63 Wis. 2d 769, 218 N.W. 2d 328 ( .
ain error. Mr.
The use of this rationale was pl ?
Hornbach has been in realty construction, main
tenance and repairs since 1939 (R.p. 441). This
totaled 36 years of experience.
e Mr. Hornbach's testimony was a neces-~
sary ocunin in the establishment of ——
case and counterclaim, especially concerning =
informing the plaintiff to cease operating ms e
premises in question, which was excluded by o a
jection (R.p. 496), appellant asserts that ano :
of his substantive rights has been invaded. = n,
the Trial Court erroneously barred on —
grounds, appellant from presenting his case
counterclaim in a court of law.
ining
D. The Trial Court Erred In Susta
Objections That Lacked Sufficient
Specificity.
hout the trail of this case, appellant's
pri vy present his case and counterclaim _
met with a barrage of objections that for the mos
part were systematically sustained. ug emer
asserts that under Sec. 901.03(1)(a) he has _
right to much more specific objections than those
presented. The Wisconsin Supreme has held that
where it is not apparent from the eee ;
a party has a right to a specific objection. . m
ple objections, "to the form of the question,
10
State, ex rel, Hussong v. Froelich, 62 Wis 2d 577,
215 N.W. 2d 390 (1974), or "no foundation", State
v. Wind, 60 Wis. 2d 267, 208 N.W. 2d 357 (1973),
are not sufficiently specific to meet the burden
of this statute. Yet a perusal of the transcript
indicates nearly all of Mr. Krembs' objections
were simply "immaterial and irrelevant", the most
general objection an attorney knows. Yet nearly
every one of these objections were systematically
sustained by the Trial Court.
There are literally hundreds of examples of
this lack of specificity in Mr. Krembs' objections,
but perhaps one that best illustrates is as fol-
lows:
MR, HUPY: Would you state whether or not
you ever authorized the Ed Margis Plumbing &
Heating Co., Inc. to do jobs for buildings you
own, Or corporations you had an interest in?
MR, KREMBS: Objection, immaterial and irrel-
evant.
MR. HUPY: This whole lawsuit has to do with
whether there was a contract or not.
COURT: Objection sustained.
(Rep. 512-513 App. p. 87). This type of
rapid fire objection, which in almost its entirety
was sustained by the Trial Court, was so vague in
its content that it left appellant with no alter-
native method to present his case and counterclaim
so it would meet the requirements of the Court.
Thus, appellant asserts he was denied any avenue
to present his side of the case and counterclaim
and was thereby, denied substantive rights. These
methods fly viciously in the face of justice and
11
and fair play.
E. Appellant Has Standing To Raise These
Issues on Appeal Since Offers of Proof
Were Made on All Issues.
During the course of the trial, appellant
raised four offers of proof. All were summarily
denied by the Trial Court. One was raised at the
close of plaintiff-respondent's case (R,P. 388)
and the reminder were made at the close of trial.
(R.p.507,545-548). These offers of proof presen-
ted necessary facts on both appellant's case and
counterclaim. As stated, non were admitted. Ap-
pellant thereby asserts that under City of Franklin
v. Badger Ford Truck Sales, 58 Wis 2d 641, 207 N.W.
2d 866 (1973) and State vs. Hoffman, 58 Wis. 2d 21,
205 N.W. 2d 386 (1973) he has fulfilled the condi-
tions precedent to raising these issues on appeal.
F. Appellant Was Denied A Fair Hearing Due
To The Extreme Partiality Of The Trial
Judge And His Remarks In The Presence
Of The Jury.
The Wisconsin Supreme Court has held that no
person should have to be tried, either civilly or
criminally by a judge who is prejudiced against
him. State, ex rel, Mitchell vs. Bowman, 54 Wis
24 5, 194, N.W. 2d 297 (1972). The facts of this
case indicate that on many occasions the judge in-
dicated in the jury's presence his bias against
the defendant. He even went so far as to indicate
to the defendant that his right to file an affida-
vit of prejudice under 261.08 of the Wisconsin
Statutes would be futile (R.p. 506).
The number of occasions that the judge ex-
posed his prejudice to the jury are too numerous
12
to be completely covered in this brief. Several
examples stand out as most blatant, however.
COURT: While you are presenting the exhibits
you can stand up, otherwise sit down and make your
arguments to the jury.
A. EISENBERG: Can I refer to the exhibits?
COURT: Yes. Please sit down. Your reputa-
tion goes before you. (R.P. 283-284).
MR, HUPY: I object. He can ask questions
and can let the witness answer: ai
MR. EISENBERG: I am trying to do my best to
answer.
COURT: Oh, no, you're not. You are not to
be adding to any answers,
(R.p. 381)
MR, EISENBERG: I have a motion to dismiss.
COURT: Your motion is denied,
‘ MR, EISENBERG: Even without knowing what it
S.
COURT: Yes, I have already heard the testi-
mony.
MR, EISENBERG: I move for non-suit.
COURT: Denied.
(Rep. 388-389).
13
COURT (TO MR, EISENBERG): Wait a second, we
are going to stop right here. I am sick and tired
of you orating to the jury and deviating from the
question. If you can't keep your attorney in line
then the Court will keep him in line. (R.p. 503-
504).
COURT (TO MR, EISENBERG): I have never tried
a lawsuit in which the lawyer was so irritating as
you have been in this case. You do not follow the
court's direction, you continue to argue and dis-
cuss matters that are not pertinent to your direct
answer. I want to say that it is the opinion of
the court that you wanted that mistrial, and I
want this on record, as far as this court is con-
cerned, I was appointed in this case after you
have had a previous mistrial, and I am going to
try to get this lawsuit to conclusion by submit-
ting instructions to the jury. (R.p. 505).
MR, EISENBERG: I am going to file an affi-
davit.
COURT: It won't do you any good to file an
affidavit of prejudice. (R.p. 506).
A perusal of the transcript will indicate
further evidence that shows it was unmistakable
to the jury or any other observer of the lawsuit,
just how the judge felt about this lawsuit.
In the words of the United States Federal
Court, "the cumulative effect of the trial judge's
constant and extensive questions asked of witnes-
ses and his occasional remarks tending on occasion
to ridicule defendant and his witnesses and to
infer that the Court believed defendant was guilty,
destroyed the atmosphere of impartiality and de-
nied defendant a fair and impartial trial. United
14
States vs. Fry, 304 F. 2d 296 (1962). Appellant
contends that the judge's attitude and comments
in this case are similar in that they, too, de-
stroyed the atmosphere of impartiality that is
supposed to have surrounded the trial.
G. The Trial Court Erred In Its Instructions
To the Jury.
The appellant asserts that the trial court
erred in its instructions to the jury. Plaintiff
did not attempt to amend the complaint. The court
erroneously instructed the jury: 1. In quantum
meruit while the complaint and the thrust of
plaintiff's suit was clearly grounded in contract
law; 2. In agency; and 3. In future profits.
As has been repeatedly stated by the Wisconsin
Supreme Court, instructions to the jury mst be
warranted by the evidence and where the evidence
supports a requested instruction, it should be
given. West Bend Mutual Insurance Company vs.
Christenson, 58 Wis. 2d 395, 206 N.W. 2d 202
(1972). Additionally, an instruction should be
specific and tailored to fit the evidence.
Lawrence vs. Jewell Companies, Inc., 53 Wis. 2d
656, 1OL N.W. 2d 671 (1972). Appellant contends
that the trial court record illustrates that the
court's instructions were clearly erroneous and
not well based on the evidence at hand. Such
error was prejudicial to the appellant and plain-
ly warrants a dismissal or new trial.
H. A Statutory Violation Resulted From The
Court's Refusal To Record Closing Argu-
ments,
A statutory violation occurred when the trial
court refused to record the closing arguments to
15
the jury, although this was vigorously objected to
by appellant (R.p. 562). Wisconsin Statutes 256.55
states in paragraph three:
"Opening statements and closing arguments
shall be reported in any action upon re-
quest of a party or upon order of the
court. A request to report opening or
closing arguments shall be made on the
record before any such argument has
commenced,"
Appellant's request for recordation, objec-
tions to its denial, and motions for a mistrial
as a result thereof were all summarily denied by
the Trial Court. Consequently, objections to
alleged improprietary statements made by Respon-
dent's counsel during the closing arguments and
the alleged misstatements themselves are not a
part of the record. ;
II. The Denial Of A Fair Trial Violates Petition-
er's Constitutional Rights Under the United
States Constitution.
As has been exhibited the Trial Court and
the Wisconsin Supreme Court have, at every turn,
distorted and interpreted matters in this case to
petitioner's disadvantage. The Trial Court has
committed numerous errors and the Wisconsin Su-
preme Court has noted many of these errors but
as noted in their decision, it is their opinion
that "not all errors at trial mandate a reversal."
Margis v. Eisenberg, P.G. No. 75-581 (Unpublished
1977). However, it has been the law of the land
and the policy of the law to afford all litigants
a day in court and impartial trial. Quinn Distri-
butors, Inc. vs. Miller, 43 Wis. (2d) 291, 168
16
N.W, 2d 552 (1969). A person must be free to vin-
dicate in court his rights secured by the Federal
Constitution. Cross v. Powers 328 F. Supp 899
(O.C. Wisc. 1971).
One of these most basic rights.is the princi-
ple that fair trial in a fair tribunal is a basic
requirement of due process. A biased decision
maker is constitutionally unacceptable and even
the probability of unfairness should be prevented.
Withrow vs. Larkin, 421 U.S, 35, 43 L. Ed. 2d 712,
95 S. Ct. 1456 (1975). The trial court herein
exemplified unparalleled bias. It is not reason-
ably arguable that the probability of unfairness
was avoided, indeed it was obvious.
There is only one avenue that can be followed
to allow petitioner his proper due process rights
and that is by a new trial. The first step would,
of course, be to grant Petitioner a Writ of Cer-
tiorari which only this Court can do. With the
unfairness of the trial court and the Wisconsin
Supreme Court behind him, this should be the least
that Petitioner is entitled to.
17
CONCLUSION
The great number and severe impropriety that
illustrates the misuse of judicial functions if
not cause of dismissal in and of themselves cer-
tainly support appellant's assertion that a re-
versal or a new trial is necessary in the interests
of justice. In Puls v. St. Vincent Hospital Sis-
ters of Third Order of St. Francis, 36 Wis. 2d 679,
154 N.W. 2d 308, (1967) the Wisconsin Supreme
Court said that a new trial should be ordered in
the interest of justice when the Court, viewing
the case as a whole is convinced that there has
been a probable miscarriage of justice. The pro-
bability of such a miscarriage in the instant
case is very substantial when viewing the conduct
of the trial court.
In conclusion, appellant asserts that the
repeated errors and unwarranted actions and state-
ments made by the Trial Court necessitate that a
new trial be had. The prejudicial comments made
by the Trial Court with reference to the appellant,
not allowing material testimony to be entered as
evidence on appellant's behalf, motions and objec-
tions not heard and summarily denied, errors in
the making of the court record and the matter of
whether respondent even has the power to maintain
this action are more than sufficient grounds for
declaring a miscarriage of justice and dismissing
the action with prejudice or in the alternative,
granting a new trial. His method of denunciation
was obviously unjudicial; in the presence of the
jury, it was a nightmare. Any litigant has a
right to have his case tried in a laboratory at-
mosphere, with dignity and mutual respect, regard-
less of religion, color and creed. Only this
Court can permit such a fair trial to be held by
allowing petitioner's Writ of Certiorari.
18
Respectfully submitted,
M. L. EISENBERG & ASSOCIATES
Attorneys for Petitioner
POST OFFICE ADDRESS:
1131 West State Street
Milwaukee, Wisconsin 53233
Telephone - (414) 271-0931
101
APPELLANT'S APPENDIX
102
STATE OF MILWAUKEE
WISCONSIN : COUNTY COURT : COUNTY
ED MARGIS PLUMBING &
HEATING CO., INC.,
Plaintiff ORDER FOR JUDGMENT
-Vs —
Case #C-4203
SYDNEY M, EISENBERG
Defendant
The respective motions after verdict of the
plaintiff and the defendant having come on to be
heard on October 29, 1975 at 9:00 o'clock a.m.
before that Branch of the County Court of Milwau-
kee County presided over by the Honorable J.
Callahan; at which time the plaintiff appeared by
its attorney Francis X. Krembs and the defendant
appeared by his attorneys, Eisenberg & Kletzke,
represented by Sydney M. Eisenberg; and after
hearing the arguments of counsel and being fully
informed and advised in the premises;
NOW, upon all the records and files herein
and proceedings had thereon, and on motion of
Francis X. Krembs, attorney for the Plaintiff,
IT IS ORDERED:
That the motions after verdict of the defen-
damt, be and the same are hereby denied.
IT IS FURTHER ORDERED: that Judgment be
entered herein in favor of the plaintiff, Ed
Margis Plumbing & Heating Co., Inc. and against
103
the defendant, Sydney M. Eisenberg in the amount
of $3,279.71 together with interest computed there-
on from May 13, 1969, and dismissing the Counter-
claim of the defendant on its merits together with
costs and disbursements to be taxed herein by the
Clerk.
Dated at Milwaukee, Wisconsin, this 29th day of
October, 1975.
BY THE COURT:
/s/ J. Callahan
County Judge
104
STATE OF MILWAUKEE
WISCONSIN : COUNTY COURT : COUNTY
ED MARGIS PLUMBING &
HEATING CO., INC,
JUDGMENT
Plaintiff
-vs- Case #C-4203
SYDNEY M, EISENBERG
Defendant
The above entitled action having been tried
to a jury before that Branch of the County Court
of Milwaukee County presided over by the Honorable
J. K. Callahan on the 13th, 14th and 15th days of
October, 1975, and the said jury have rendered its
special verdict on October 15, 1975, in favor of
the plaintiff and against the defendant, which
special verdict is on file herein and is hereby
incorporated by reference, and the Court having
ordered judgment in accordance with said verdict,
NOW, on motion of Francis X. Krembs, attorney
for Plaintiff,
IT IS ORDERED AND ADJUDGED:
1. That the plaintiff, Ed Margis Plumbing
& Heating Co., Inc, recover from the defendant,
Sydney M. Eisenberg, the sum of $3,279.71 with
interest in the amount of $902.13 computed there-
on from May 13, 1969 together with the sum of
$219.64, being the costs and disbursements taxed
herein,
105
2. That the Counterclaim of the defendant be
and is hereby dismissed on its merits.
Dated this 19th day of November, 1975.
BY THE COURT
FRANCIS X, McCORMACK, Clerk
By: /s/ Dorothy Slawyk _
Deputy Clerk
Judgment entered this 19th day of November, 1975
at 2:45 o'clock p.m.
FRANCIS X, McCORMACK, Clerk
By: /s/ Dorothy Slawyk
Deputy Clerk
106
No. 75-581
August Term, 1977
STATE OF WISCONSIN : IN SUPREME COURT
Ed Margis Plumbing and Heating
Company, Inc.,
Respondent,
Vv.
Sydney M. Eisenberg,
Appellant.
APPEAL from a judgment of the county court of
Milwaukee county: JOHN K, CALLAHAN, Judge.
Judgment affirmed, -
107
PER CURIAM, The action was based on a con-
tract allegedly entered into by the Ed Margis
Plumbing and Heating Company, Inc. and Sydney M.
Eisenberg. The Company installed pipe in the
boiler room of an apartment building owned by
Eisenberg pursuant to an alleged oral contract
between Richard Margis, representing the Company,
and Fred Hornbach, Eisenberg's property manager,
charges for work to be made on a time and materials
basis. Eisenberg claims that Hornbach had no au-
thority to contract for him and denied the exis-
tence of any agreement with the Company. Further,
Eisenberg entered a counterclaim alleging that
the installation of the pipes had caused him con-
siderable loss because the installation had been
done in a manner which interfered with his plans
to relocate the water heaters and convert the
boiler room into an apartment.
The action was initiated April 16, 1970. The
trial date was postponed several times and two
mistrials were granted. The third trial proceeded
to judgment which was entered November 29, 1975.
The following issues are presented in this
appeal:
1. Is a corporation which was an active
business operation at the time suit was initiated
barred from maintaining the suit if its current
annual reports have not been filed with the Sec-
retary of State at the time of trial?
2. Did the trial court err in limiting
cross-examination of a witness to the scope of
the direct examination?
3. Did the trial court err in sustaining an
objection on the ground that the witness was in-
108
competent when no ground of incompetency was stated?
4. Did the trial court err in sustaining ob-
jections on the ground that the question sought
"immaterial and irrelevant" information because
such objections lack sufficient specificity?
5. Did the trial court exclude, without basis
in reason or law as Eisenberg contends, virtually
all of the evidence necessary to support Eisenberg's
case and counterclaim?
6. Did the trial court err in refusing
Eisenberg's request to record the closing argu-
ments?
7. Did the trial court err in several in-
structions?
8. Was Eisenberg denied a fair hearing be-
cause the trial court was biased against him?
Corporation's Capacity to Sue
Ed Margis Plumbing and Heating Company, Inc.
was a family-run operation. The Margis brothers
managed the business after their father's death
in 1968. There was evidence that the corporation
stopped doing business in November, 1970, but
there was no evidence that its corporate existence
was terminated. There was evidence that the cor-
poration had failed to file its annual report with
the Secretary of State as required by law.
A corporation which has not filed an annual
report with the Secretary of State within a year
of each calendar year's end is not in good stand-
ing. Sec 180.793(3), Stats. The statutes do
not provide that a corporation which is not in
109
good standing is barred from prosecuting a suit.
Eisenberg argues that failure to file an an-
nual report results in a "technical dissolution"
since the attorney general may commence an action
seeking a decree of a circuit court involuntarily
dissolving a corporation which does not file an
annual report. Sec. 180.769(1)(a), Stats. This
argument is specious. The attorney general ini-
tiated no such action against the Company. Indeed,
even if he had, the dissolution of a corporation
does not take away or impair any remedy available
to a corporation for a claim existing prior to the
dissolution if such action is commenced within two
years after the date of dissolution. Sec. 180.787,
Stats. We conclude the Company did not lack capa-
city to maintain the suit. Sec. 180.04(2), Stats.
Scope of Cross Examination
Eisenberg correctly asserts that the trial
court erred in ruling that cross-examination mist
be limited to the scope of the direct examination
of the witness. Boller v. Cofrances, 42 Wis.2d
170, 166 N.W.2d 129 (1969). However, Eisenberg
failed to preserve this issue for review. He in-
cluded the assignment of error in his motions
after verdict, but he made no offer of proof re-
garding the answer anticipated. Bellinder v.
State, 69 Wis.2d 499, 506, 230 N.W.2d 770 (1975);
Findorff v. Findorff, 3 Wis.2d 215, 226, 88 N.W.
327 (1958).
The question which provoked the objection
and ruling was the following: "When did you first
find out that the defendant was very unhappy and
discouraged with what had taken place?" The wit-
ness had testified that she personally did not
know anything about the transaction leading to
110
the suit. Her only basis for answering the ques-
tion objected to, which concerned an aspect of
that transaction, would have been information ob-
tained from others, presumably, from her son.
Since the son later testified on the same point,
it is probable on the basis of the existing record
that nothing of substance was lost by the error.
The question was answered, and the information
sought by the question was given to the jury.
Competency of Witness
Eisenberg correctly asserts that the trial
court erred in sustaining an objection to a ques-
tion asked of Hornbach, the property manager, on
the ground that Hornbach was incompetent to an-
swer. The question concerned the contents of a
letter written by Hornbach.
Every person is competent to be a witness
except one prohibited by the rules. See sec.
906.01, Stats. No exception seemed to apply to
Hornbach. Here again, no offer of proof was
made by Eisenberg so the error was not properly
preserved for this court. Bellinder, Findorff,
supra. Nevertheless, on the basis of the record,
the error could not have been prejudicial to
Eisenberg. The question objected to had already
been asked of the witness in a slightly different
form and answered by him.
Sufficiency of "Immaterial
and Irrelevant" Objection
Eisenberg asserts that the trial court erred
repeatedly in sustaining objections made on the
ground that the information sought was "irrelevant
and immaterial."' Eisenberg claims that an objec-
tion must be made on specific grounds. Eisenberg
111
in his brief says "There are literally hundreds of
examples of this lack of specificity in...
objections."
The general rule is that objections should
be specific. However, when evidence is excluded
upon a general objection, the ruling will be up-
held on appeal if there is any ground to sustain
the exclusion. Our court has also indicated that
in the absence of any request by the opposing
party or the court to make the objection more
definite, it will be assumed that the objection
was understood and the ruling placed on the correct
ground. See Colburn v. Chicago, St. Paul, Min-
neapolis & Omaha Ry., 109 Wis. 377, 382, 85 N.W.
354 (1901); Rosenberg v. Sheahan, 148 Wis. 92,
95-96, 133 N.W. 645 (1912); State v. Hoffman, 240
Wis. 142, 152, 2 N.W.2d 707 (1942); Boardman,
Offer, Objection and Preservation of Error, 1945
Wis. L. Rev. 222, 225-227. On trial, Eisenberg
did not ask that the objections be made more spe-
cific. Eisenberg contends that the mltitude of
those objections which were sustained "fly...
in the face of justice and fair play." We have
carefully read the record and do not believe the
judgment should be reversed in the interest of
justice.
Unreasonable Exclusion of Evidence
Supporting Defendant's Case
In addition to the alleged errors in eviden-
tiary rulings already discussed, Eisenberg makes
a general assertion that the trial court abused
its discretion by excluding virtually all the
evidence necessary to his defense and counter-
claim through rulings which had no basis in rea-
son and law. The record does not support Eisen-
berg's characterization of the trial.
0
112
Eisenberg testified at length in his own be-
half and produced several witnesses who were exam-
ined regarding the issues he raised as to agency
and damages. An examination of the facts encom-
passed by Eisenberg's offers of proof shows that
virtually all of the evidence claimed to have been
improperly excluded was part of the record. The
only subject upon which no evidence was admitted
related to the practice of the plumbing industry
regarding written contracts and Eisenberg's general
policy regarding written contracts. Eisenberg at-
tempted to introduce evidence on these subjects
at several points in the trial. Without deciding
whether any ruling which excluded evidence on those
subjects was erroneous, we note that, even if all
or some of the rulings were erroneous, "not all
errors at trial mandate a reversal. Trial error
is prejudicial only when it reasonably could be
expected to affect the outcome of the case. The
general rule that this court follows is that it
will not reverse for error unless it appears prob-
able from the entire evidence that the result
would have been different had the error not oc-
curred."' McCrossen v. Nekoosa Edwards Paper Co.,
59 Wis.2d 245, 264, 208 N.W.2d 148 (1973). The
jury heard evidence relating to the transaction
in issue; it is not probable that a different
conclusion would have been reached if the jury
heard evidence on general industry practice or
Eisenberg's own past dealings.
Refusal to Record Closing Arguments
The trial court erred in not recording the
closing statements of counsel. Sec. 256.55(3),
Stats. provides:
"(3) Voir dire examinations in any civil
or criminal action need not be reported unless
113
ordered by the court. Opening statements and
closing arguments shall be reported in any action
upon request of a party or upon order of the court.
A request to report opening or closing argument
shall be made on the record before any such argu-
ment has commenced."
Eisenberg did request that a record be made;
he objected to counsel's closing argument; and
he renewed the request for a record at the time
of objection to the argument. However, even if
the closing argument had been recorded, Eisenberg
would not now be able to raise any objections.
Eisenberg failed to move for a mistrial on the
basis of counsel's argument before the verdict
was returned. Nietfeldt v. American Mut. Liability
Ins. Co., 67 Wis.2d 79, 89, 226 N.W.2d 418 (1975);
Zweifel v. Milwaukee Automobile Mut. Ins. Co., 28
Wis.2d 249, 137 N.W.2d 6 (1965). While the jury
was deliberating, Eisenberg asked that the record
reflect his original request that closing state-
ments be recorded; that motion was not sufficient
to preserve an objection to an erroneous closing
statement.
Jury Instructions
Eisenberg asserts that three of the jury
instructions were erroneous. The instructions
objected to related to the principal-agent rela-
tionship and the measure of damages--quantum
meruit and the loss of future profits.
The agency instruction was not inadequate or
slanted against Eisenberg. The instruction given
was similar to the standard instruction on agency.
See Wis. J I Civil 4000. The language in the
instruction given (but not in the standard in-
struction) advised the jury that even though there
0
114
was a prior principal-agent relationship their
task was to determine whether a principal-agent
relationship existed for the contract in question.
re believe the instruction was favorable to Eisen-
erg.
Eisenberg argues that the jury should not
have been instructed on "quantum meruit" because
the complaint was based on an alleged contract.
Eisenberg is correct in contending that where a
plaintiff claims to have performed the contract
the measure of damages is the stipulated contract
price, not quantum meruit, Roszina v. Nemeth, 251
Wis. 62, 67, 27 N.W.2d 886 (1947); Estate of
Andrus, 178 Wis. 358, 362, 190 N.W. 83 (1922).
However in this case the alleged contract
terms were that the work be paid for on a time and
materials basis. The court's instruction was
that if the jury found the Company had in good
faith rendered services to Eisenberg, it should
award the Company the reasonable value of the
services. This language is substantially equi-
valent to instructing the jury to award damages
on a time and materials basis. Damages under the
terms of the contract or under the quantum meruit
theory as described in the instruction are sub-
stantially the same in this case,
Eisenberg does not contend that the content
of the instruction on future profits was erron-
eous. He contends that the instruction was in-
appropriate because he asked for profits lost
between the time the pipes were installed and
the trial, not for profits lost for the indefin-
ite future because of the defective work. On
the basis of Eisenberg's counterclaim and the
record, we believe the instruction was proper.
If Eisenberg wanted an additional instruction
115
relating to other measures of damages, he failed
to request such an instruction.
Trial Court's Bias
According to Eisenberg, the trial court dis-
played a bias against him which resulted in his
being denied a fair hearing. We do not agree.
Eisenberg and Michael Hupy were counsel for Eisen-
berg.
The record indicates that sharp words were
exchanged among all the participants in the trial.
However, the trial court was careful to clarify
for the jury an ambiguous statement it made which
might otherwise have been misunderstood as a nega~
tive comment on Eisenberg. Further, in the gen-
eral instructions, the court instructed the jury
to disregard completely anything it had said
which might have suggested the court had a feeling
one way or the other in the case. In our opinion,
the trial court's instruction corrected any possi-
ble error.
Eisenberg also asserts the trial court indi-
cated prejudice by summarily denying his motion
to dismiss and his motion for non-suit. Although
the trial court initially declined to hear the
grounds for the motions, it later did hear a
long statement on the grounds of the motions be-
fore denying the motions. Eisenberg's contention
on this point is therefore baseless.
During the trial, Eisenberg remarked that he
intended to file an affidavit of prejudice under
sec. 261.08(1), Stats. He believes the court in-
dicated bias against him when it remarked that
it would do him no good to do so. The court's
remark was simply an accurate statement of the
116
law. An affidavit of prejudice requesting sub-
stitution of judges mst be filed within ten days
after a case is noticed for trial. Sec. 261.08(1),
Stats. It would not further the administration of
justice if a party could request a change of judge
after jury trial had begun. See Pure Milk Products
Coop. v. NFO, 64 Wis.2d 241, 247, 219 N.W.2d 564
(1974). .
For the reasons set forth above, the judgment
is affirmed.
117
Office of the Clerk
SUPREME COURT
State of Wisconsin
Robert O. Uehling
Clerk Madison, January 8, 1978
To Francis X.Krembs, Milwaukee
Eisenberg & Kletzke, Milwaukee
The Court today announced decision in your case
as follows:
SEE
ED MARGIS PLUMBING AND HEATING CO., INC.
v. SYDNEY M, EISENBERG,
#75-581
MOTION FOR REHEARING DENIED WITH COSTS.
oases a>a>anWowr™™S
Respectfully yours,
ROBERT 0, UEHLING
Clerk of Supreme Court
age of
tecord
233
234
118
INITIAL STATEMENTS
Mr. Hupy:
Section 180.04 of the Statutes of the State
of Wisconsin lists all general powers of the cor-
porations incorporated in this State. Subsection
(2) of that section states that a corporation has
the power to sue and being sued in its corporate
name. Now, Section 180.79(3) deals with filing
an annual report of a domestic corporation. Sub-
section (3) of that Statute states that if said
report is not filed by the following January lst
the corporation shall not be in good standing.
We checked with Madison, Judge, and the plaintiff
corporation is not at this time in good standing.
The Secretary of State also advises us they have
not heard from the corporation since 1972. I
don't think if the corporation is not in good
standing it has the power under 180.73(2) to sue.
I don't think the corporation can sue. We would
ask the Court to bar the plaintiff corporation
from proceeding in the trial of this action.
COURT:
I looked at the complaint which is on file
and subscribed to on the 10th day of April, 1970.
The motion is denied.
MR, EISENBERG: ,
May we have permission to review the motion
with some authority?
COURT:
You have the right during the trial to make
the motion.
Page of
Record
119
MR, EISENBERG:
We will have some authority and have some
proof that the corporation is not in good stand-
ing at this time. I have a motion. I have a
motion. The motion is to strike the reply for
the reason that the answer and counterclaim was
filed on May 4, 1970. It was served on Francis
Krembs April 21, 1970.
COURT:
What was?
MR, EISENBERG:
The answer and counterclaim served April 21,
1970. There is no extension of time by the Court.
Reply was filed on June 26, 1970 without any copy
to us where there was a reply.
COURT:
What do you say?
MR, KREMBS:
That reply had been served upon the Defendant
and had been filed in this action. Further this
matter had been brought on for trial on two dif-
ferent occasions. We proceeded into trial based
upon all the issues raised, not only in the com-
plaint, but in the counterclaim as well, and issue
was joined to both parties’ pleadings. I think
the Court will take into consideration this mo-
tion now made is not properly predicated upon any
actual facts, and furthermore, whatever complaint
the defendant might have had was waived by his
proceeding to trial on two previous occasions.
Page of
Record
235
120
MR, EISENBERG:
I don't know what counsel is talking about.
We never got beyond an opening statement in the
previous case as I understand it, and as I remem-
ber it, and I at all times intend to move for
judgment on the counterclaim. I thought I would
alert the Court ahead of time.
COURT:
You made your record, Mr. Eisenberg, your
motion is denied.
MR, KREMS3S:
Merely for the sake of the record by examina-
tion of the file I discovered the affidavit I was
looking for; that reply was served upon the defen-
dant by mail as shown in my affidavit of mailing
dated June 25, 1970, and it is to the effect that
the reply was mailed to the defendant on May 6,
1970 and that is of record.
MR, EISENBERG:
If the Court please, we never got any, it was
filed in Court on that date. Your Honor can see
there is no affidavit attached to it; secondly, I
still don't have a copy, and, thirdly, he was late
anyway.
COURT;
You have made your record for the Supreme
Court. Your motion is denied. I am going to try
this lawsuit today.
zkKekeKkeKeKE KEK
Page of
Record
245
7 246
247
248
121
DIRECT EXAMINATION OF ALMA MARGIS, BY MR, KREMBS:
My name is Alma Margis, I live at 5011 North
Palisades Road. I am familiar with Ed Margis
Plumbing & Heating Co., Inc. My husband, Ed Margis,
organized that corporation to engage in the busi-
ness of plumbing and heating. That corporation
was doing business in 1967, 1968, and 1969. My
husband died on January 7, 1968. Up to that time
the actual plumbing work was done by my sons, Ed-
ward and Richard Margis, who also were active in
the corporate business. There were no stock-
holders in this corporation, it being just a fami-
ly affair. No one other than the immediate Margis
family had an interest in the corporation.
After the death of my husband, the business
continued with Ed Margis, a master plumber, being
in charge of the business. He was accompanied by
his brother, Richard and Arthur. They continued
to operate through November of 1970, after which
the plaintiff corporation ceased to do business.
CROSS-EXAMINATION OF ALMA MARGIS, BY MR, EISENBERG:
I have no specific knowledge of the facts of
this lawsuit. I found nothing in the files and I
had nothing to do with the business of the plain-
tiff corporation.
MR, EISENBERG:
When did you first find out that the defen-
dant was very unhappy and discouraged with what
had taken place?
MR, KREMBS:
I object to the form of the question. It is
‘age of
.ecord
249
250
122
too general to the topic and no reference to time.
COURT:
Sustained. It has nothing to do with the
facts of cross-examination. That question was not
brought out on the original questioning.
MR, EISENBERG;
Is the Court's ruling that cross-examination
can't extend beyond the direct examination based
on the Supreme Court's interpretation of the evi-
dence?
COURT:
Yes.
ALMA MARGIS:
The company was dissolved in November of 1970,
Arthur, my son, was involved in the business. He
is still alive but is not working for us.
DIRECT EXAMINATION OF OSWALD CLUDIUS, BY MR, KREMBS:
My name is Oswal Cludius, and I reside at
2641 South 30th Street. I am Assistant Superin-
tendent Plumbing Inspector for the City of Milwau-
kee. I have held that position for 16 years.
In 1969 my duties consisted of supervising
plumbing inspection records. (Plaintiff's exhibits
1, 2 and 3, marked for identification). I was
subpoenaed to appear this morning and bring cer-
tain records of 803-813 East Wells Street from
1969. I have these records with me.
Page of
Record
251
251A
123
Plaintiff's exhibits 1 and 2 are receipts
for a permit taken out by the plumbing inspector's
office. They were issued by the Plumbing Inspec-
tor's office, City of Milwaukee. The premises id-
entified in these exhibits are those of 803 and
813 East Wells. They were issued to Ed Margis
Plumbing & Heating Co., Inc. for the purpose of
installing two gas water heaters. Plaintiff's
exhibit 3 I can identify. It does bear my signa-
ture, and it is retained by me as part of my
duties as assistant superintendent plumbing in-
spector. Exhibit 3 relates to the installation
of water heaters at 803-813 East Wells Street.
It was made following an inspection by the bureau
which it refers to.
CROSS-EXAMINATION OF OSWALD CLUDIUS, BY MR,
EISENBERG:
I don't remember that job in 1969 and I don't
remember the building, as I was not the inspector
of the building.
MR, EISENBERG:
And with reference to the City of Milwaukee
Building Inspectors Division, do you know of any
reason why the gas heaters couldn't have been in-
stalled on the opposite wall where the gas regu-
lator was stationed, rather than run it all the
way across to the other side of the building?
MR, KREMBS:
I will object, no proper foundation laid.
MR, EISENBERG:
I stipulated he is qualified.
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COURT:
Objection sustained.
MR, EISENBERG:
I will ask you as a City Building Inspector
for the plumbing department in your capacity, can
you think of any reason under the sun why two gas
heaters should be run to the opposit side of the
building where the gas regulator had already been
brought into the building?
MR, KREMBS;
Objection, no proper foundation made, calling
for speculation.
COURT:
Objection sustained.
MR, EISENBERG:
Mr. Cludius, would you say it is common sense
to run gas lines all across a building and put hot
water heaters on the opposite side and come up
with a bill of better than three thousand dollars?
MR. KREMBS;
Same objection.
COURT:
Objection sustained.
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MR, EISENBERG:
I am expressing it to the Judge.
COURT:
The Court hears you very well.
MR, EISENBERG:
That is all.
DIRECT EXAMINATION OF RICHARD MARGIS, BY MR, KREMBS:
My name is Richard Margis, and I reside at
Cedar Edge, Iowa. Prior to that, I resided at
Fredonia, Wisconsin. I was affiliated with Ed
Margis Plumbing & Heating Co., Inc., from 1961
through 1969. In 1967 and 1969 I worked there
as a journeyman plumber and estimator. My duties
included going out in the field and giving prices
on work to be done, giving advice in the field to
anyone who wanted to remodel a kitchen or bath-
room, any pipes that were involved, also to bill
out and to oversee any billings that were to be
made as far as statements and invoices.
I am familiar with the job at 803-813 East
Wells Street, and I am familiar with the work
that was performed there. I had been contacted
to do work there in January or February, 1969.
That contact was made by Fred Hornbach, who is
the property manager for Laneil Property Manage-
ment Company. That is a corporation run by Syd-
ney Eisenberg. Mr. Hornbach had contacted me
before with reference to other work. When Mr.
Hornbach contacted me, he stated he was calling
for Laneil Management Company.
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In the course of this conversation, Mr. Horn-
bach stated that he wanted me to look at some
work at 803-813 East Wells Street, pertaining to
the installation of day and night heaters in the
buildings. He also wanted to meet me on the job,
which was done in the latter part of January or
early February of 1969. At that time, Mr. Horn-
bach, the building janitor or superintendent, and
myself met in the lobby of 803-813 East Wells.
At this time I was taken into the back of the
building and shown where the heaters were to be
placed by Mr. Hornbach, who also wanted me to give
him a price on the installation of the furnace.
At that time Mr. Hornbach indicated we were to
install the gas pipes and hook the hot, cold, and
return lines to the water heaters. We also were
to run the gas line for two heating boilers to be
installed by others. No drawings were furnished
at this meeting. The meeting lasted about a half
hour to forty-five minutes. At the close I told
Mr. Honrbach that I couldn't give him a firm esti-
mate on the piping, the only way we could take the
job would be on a time and material basis. In re-
sponse to this statement, Mr. Hornbach said he
would check and get back to me.
He did contact me a week or two later, by
telephone to our office, and said he had an Okay
on the work and we should proceed with the piping.
After this conversation we applied for a permit
for the job. The permits are exhibit 1 and 2.
I then took the men over, showed them what was to
be done, and that they could proceed with the
work. When we went there, the only person present
was the janitor, who let us in. This transaction
occurred in the middle of February. The men on
the job were my brother, Edward, Wayne M. Hammer,
and Ed Morowski.
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Later on in the job we were again contacted
by Fred Hornbach, on the telephone. This was
made in the beginning of March. At that time he
told us to pull off the job. At this time Mr.
Hornbach said nothing about the work, only that
he would get back to us and let us know when we
could get back on the job. He did not explain
what the problem was. At this time I pulled the
men off the job.
I was again contacted by Mr. Hornbach in the
latter part of March, 1969, again by telephone.
At that time he said everything was all right and
to proceed with the work. I therefore sent the
same crew of men back on the job.
At this time I maintained all books and re-
cords of the corporation with the reference to
jobs that were being done. I recognize plaintiff's
exhibit 4 as part of these books and records. The
job slips included therein appear to be in my
brother's handwriting. It was customary, in Feb-
ruary and March of 1969, to have the men on the
job prepare the job tickets. I recognize plain-
tiff's exhibit 5 as an invoice addressed to Laneil
Management Company. That invoice was prepared in
the usual course of maintaining the books and re-
cords of the plaintiff corporation at that time.
That invoice was prepared under my supervision
and direction, and the original was sent to the
defendant. I can identify plaintiff's exhibit
6 as an invoice dated May 13, 1969, addressed to
Laneil Management Company from Ed Margis Plumbing
& Heating. This invoice was issued under my
direction and was done in conformity to the pro-
cedures adhered to by the corporation at that time.
The work referred to in exhibit 5 relates to the
installation previously discussed with Mr. Horn-
bach.
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Page of
Record
In my opinion, the work set forth in exhibit
5 was necessary in accomplishing the end that I
had discussed with Mr. Hornbach. As estimator 273
for the plaintiff corporation, I familiarized my-
self with the prices prevailing in this community
during January, February, March, and April of 1969.
The charges set forth in plaintiff's exhibit 5
conform to those prevailing in this community at
that time.
a Oe ee
274
After the date of the invoice, May 6, 1968,
Mr. Hornbach again contacted me by telephone. At
that time he stated that Mr. Eisenberg wanted to
see me on this bill, and also requested an itemized 275
bill. With reference to this itemization, he sta-
ted he wanted a breakdown on the labor and the
material. Therafter we sent such an itemization.
Exhibit 6 is the statement I am referring to.
That exhibit is dated May 13, 1969. Shortly after
we sent exhibits 5 and 6 we met with Mr. Eisenberg,
at his office. Mr. Eisenberg, Mr. Hornbach, a
representative from Iron Fireman, and myself at-
tended this meeting. At that meeting, Mr. Eisen-
berg said he wanted me to take a cut on the bill
of about half. I told him I would not cut it in
half and that was the end of the meeting. Other
than requesting the bill and the itemization, Mr.
Eisenberg and Mr. Hornbach made no reference to 276
the work covered in exhibits 5 and 6.
275A
CROSS-EXAMiNATION OF ED MARGIS, BY MR, EISENBERG:
At the time I came to the office I was not |
told that I had no authority to make the changes. j
I have been sworn to tell the truth. Somewhere
in January or the beginning of February, 1969 was
the first I knew about the job on Wells Street.
I was not a stockholder of Ed Margis Plumbing &
Heating Company, and am not now. At the time I
129
was in Mr. Eisenberg's office he did not tell me,
to the best of my knowledge, that I had no busi-
ness getting a plumbing permit, that all arrange-
ments ~vuld be made with Iron Fireman. I did not
see the contract with Iron Fireman providing that
they would get the permit. He did not mention to
me that he was very unhappy about running pipe
across the hall. I had no idea why we were stopped
and told to get off the job. I was told to get
off the job once. I did not work on the job my-
self. I do not know how many times the janitor
or Mr. Hornbach told us to get off the job. I
never got a personal order from anybody to go
ahead with this job. At the time I was in Mr.
Eisenberg's office I was not told that nothing
could be given out of that office without a pur-
chase order. The only thing I was told in Mr.
Eisenberg's office was that the bill was too high,
cut it in half. There was a man from Iron Fire-
man there, and Mr. Hornbach came into the office
with me. I do not know what Mr. Eisenberg's tem-
peraments are, any time someone wants to cut a
bill in half they are not happy.
I don't have any written contract with any-
body to do work on these buildings for any amount.
No one gave me a work plan to show me what was to
be done. I was not a master plumber at the time
Mr. Hornbach called me in January of 1969. It is
not a matter of fact that my mother was running
the company. I do remember being put under oath
on February 21, 1973, and being questioned by a
Mr. Pogodzinski. I gave these answers to questions
put to me. "Were you running the office for Ed
Margis Plumbing & Heating Co. at that time?"
Answer: I was a plumber and estimator at that
time." Question: "Who was running the office?"
Answer: My mother."
a
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130
It is not a fact that I was contacted only
once by Mr. Hornbach. I was asked the following
questions, and gave the following answers, under
oath.
QUESTION; "Did you meet with him," referring to
Hornbach, "regarding this telephone conversation?"
ANSWER: "Yes."
QUESTION: "Where did you meet with him?"
ANSWER: "At the building in question." ‘
QUESTION: "When did you meet with him?"
ANSWER: "I couldn't remember."
QUESTION: "Was it in January, or, say in Febru-
ary, or in March?"
ANSWER: "It was either the latter part of Janu-
ary or February."
QUESTION: "Do you know who arranged the meeting?"
ANSWER: "Fred Hornbach."
QUESTION: "Did he call you more than once?"
ANSWER: "No."
When I met with Fred Hornbach in the lobby,
all he asked me for was a price. He did not tell
me to go ahead at that time. I didn't give him
a price at that time. I had seen Mr. Hornbach
before that day. The next time I saw him was at
the meeting in Mr. Eisenberg's office. I did not
see him between these times. I myself did
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not send any billings that were prepared. I pre-
pared them but the office girl sends them out.
Fred Hornbach did not sign anything pertain-
ing to this job with reference to his dealing and
discussions with me. I knew Fred Hornbach did
not own the property.
Our employees went in and did this work.
They turn in weekly time cards, which I don't
have with me. They were apparently lost when the
business closed. They were not thrown away. I
knew this case was coming up for quite a while.
The original records were sent to Mr. Eisenberg,
not the time cards, but exhibits 5 and 6.
I sent a bill, marked exhibit 5, to Laneil
Management, and I've heard Mr. Eisenberg say he
received it. I also sent the bill marked exhibit
6 to Laneil Management Company. There were no
other bills sent to Laneil.
The portion of the bill that says "Material
charged, $1338.21," covers a list of materials on
the previous bill. I believe the diameter of the
pipe was 3". It's been four, five years ago.
About 50 ft. of 3" pipe was laid. There is no
price listed on the bill for anything other than
service and material total. That is the way we
usually did it, unless they require, as Mr. Eisen-
berg did, a breakdown. Mr. Eisenberg requested
a breakdown of labor and material. One could not
tell the price per foot of 3" pipe from his bill,
as he didn't request it. I could not say what
was charged for the nipples. I could not say how
much went to the unions.
The bill reads: "Iwo 3/4" hammers, brass
nails, then 72 ft. of 2" galvanized steel pipe,
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then 8 ft. of 2" galvanized unions, 5 2" galvan-
ized T's, 4 2" by 1-1/2" galvanized T's, then 1
2" and 1-1/2" galvanized T."" The 2" pipe was
used for water, 3" is used for gas. When I have
2" and 1-1/2" galvanized T, that is not what I
put on, 3, but I put on 2. The plumbing permit
costs $2.00, I needed two, for a total cost of
$4.00.
In the itemization I have indicated the num-
bers of the various items, but nowhere have I
stated what the price was on any of them. We
were asked for a breakdown on material and:labor.
A material charge of $1,338.21 is listed, and
that covers all materials. It was charged at
the fair market price at that time. I don't re-
call what the price of the 1 2" by 1/4 hex bush-
ing cost; it was four, five years ago. [Every-
thing is simply lumped together in one figure.
That was the way Mr. Eisenberg requested it.
There are several ways to transact business
in this community. You could do it by written
contract or verbally. We dealt with Mr. Hornbach
verbally. Other jobs done with Mr. Eisenberg in-
clude a job on Marshall Street and on Commerce
Street. I don't recall if there were written
contracts for these jobs. It is common practice
to do work without written contracts. An arrange-
ment like this could be worked out with attorneys,
since I trust attorneys on their word, and they
trust me on mine. I did not know Mr. Eisenberg's
company had their own people on the payroll for
heating. I don't deny that I was told by Mr.
Eisenberg that they had put the gas pipes in
themselves.
k** RK
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I knew Mr. Hornbach on sight, because I had
met him before. I was asked on that previous
occasion to get a roto-rooter and to make minor
repairs on the building, such as fixing leaks.
This is to my memory, but it has been quite some
time. I have no idea if Mr. Eisenberg's firm
used other plumbing firms than ours on occasion.
Mr. Hornbach, on occasion, told me to hold
up, then to start again. The exact dates of this
I couldn't tell, but it was in 1969. I made no
notes or entries pertaining to this, I merely had
a verbal okay on it. I am sure it was Fred Horn-
bach who gave me the go ahead on the telephone
although the date I don't know, it was sometime
in March. I believe there was a delay in the
work on March 4th or so it must have been around
that date. Plaintiffs Exhibit 4 was not shown
to Mr. Eisenberg before today. The top page of
Exhibit 4 was made out when the job was progress-
ing. My brother's handwriting appears on the
front cover in ink and is also in pencil. I never
made out any part of the front page except the head-
ing. I can't type, but it was made under my super-
vision, as was Exhibits 5 and 6. Exhibit 4 was in
my records from the time I received it. As I sta-
ted both records, in reference to the headings were
made under my supervision even though someone else
made the entries on them.
The address Exhibit 5 was sent to was Laneil
Management, 1131 West State Street, Milwaukee,
Wisconsin 53233. Exhibit 4 was made out to Laneil
Management, 803 East Wells, Milwaukee, Wisconsin.
On Exhibit 4 it is spelled L-A-N-I-E-L, On
Exhibit 5 it is L-A-N-E-I-L. Both were made under
my supervision.
As to the gas pipe line, the Gas Company set
the meters and someone else completed the gas line,
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outside of my company. We ran the line up to a
certain point. From that point, it would be up
to the installers of the boiler to connect on to
it. Our company hooked up the heaters though I,
myself, did not do it. I knew these circumstances,
however, because I had trusted men on the job and
I took their word for it. I do remember the fol-
lowing questions being asked of me under oath.
Question: "Were those the only people to do work
on the job?" Answer: "From our company, yes."
Question: "Did somebody from some other company
do some work on it, do you know?" Answer: “"What-
ever else he had done was done by another’ company,
not ours."' Question: "You, yourself, didn't do
any of the work on it?" Answer: "No."
As to the time cards, I left the business
before the business was closed down. I was asked
the following under oath and gave the following
answers. Question: "Now, did your brother and
these two other men, did they keep time cards of
the time they spent on this particular job?"
Answer: "Yes, they kept track of all the time
spent on the job."" Question: "Do you have the
time records in your possession?" Answer: "No,
I don't?" Question: "Who would have them, if
you know?" Answer: "I don't know." Question:
"You don't know if your brother, Ed, would have
them?" Answer: "No, I don't."
A material list is kept by the men on the
job. One of my men kept it. There was no one
person in charge. I have a material list so I
know it was kept. It is true that job tickets
were usually kept by plumbers as to materials
furnished. The job ticket in this case is Exhi-
bit 4, We first found it when we went through
the files. I did not have it when I was deposed
in 1973. At that time, I didn't know whether it
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was kept or not. I said then I was running the
office not that job. My men were running the job.
If anyone was in charge, it would have been my
brother. I gave the following answers to ques-
tions while under oath. |
By Mr. Pogodzinski: "I refer to A-Z through
A-5, attached to the Complaint, which apparently
lists a number of items that were supposedly put
into this job, and I don't see any separate prices
on any of those items. "Do you know whether there
was a separate list on them?" Answer: "I couldn't
tell you that if there was or not any more." Ques-
tion: "Would sumebody in the office have sent a
separate list’ Answer: "I wouldn't know." Ques- |
tion: "Do you know how the $1,338.21 for materials
was arrived at? Answer: "Through a material list
made out on the job." Question: "Do you know
whether there was such a material list in exis-
tence at this time?" Answer: "I couldn't answer
that."" Question: "Who would have kept the mat-
erial list, if you know?". Answer: "I don't know
who would have kept it." Question: "Now, of the
three men that were allegedly on this job, which
of the three would have been in charge of the
job, if you know?" Answer: "I would say there
would have been no one in charge, they worked as
a unit." Question: "Would anyone of the three
have kept a material list?" Answer: "I don't
know, someone would have kept it." Question:
"On what type of form would it have been kept?"
Answer: "A job ticket." Question: "But you
don't know where that job ticket is, though, do
you?" Answer: "No." Question: "Would any of
the three men have been authorized to make en-
tries on the job ticket?" Answer: "Yes." Ques-
tion: "But you don't know whether or not they
were actually put into place, do you?" Answer:
"All I can say is that they wouldn't be listed if
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they were not used." Question: "You weren't
there though when those things were put in, right?"
Answer: "No." Question: "Do you know who com-
piled Exhibits A-1 through A-5?" Answer: "Do you
mean the original lists?" Question: "Do you know
if that was drawn up at your company or who did
that?" Answer: "The list of materials?" Ques-
tion: "The whole thing, all of that Exhibit, the
original of it?" Answer: "The list of materials
was drawn up by the men, what they used on the
job."" Question: "But, what I'm trying to get at,
who drew up these papers that are right in front
of you?" Mr. Krembs: "He's talking about Exhi-
bits A-l1 through A-5." Answer: "That would be
the office girl." Question: "Would there have
been a rough draft or something written out by
someone?""' Answer: "Only from the original job
ticket."" Question: "Was it procedure to destroy
the original ticket after this type of thing was
made up, or did you keep those?" Answer: "Some-
times they were destroyed, other times we kept
them." Question: "In this case, you don't know
whether or not the original job ticket was de-
stroyed or if it was preserved?" Answer: "Yes,
I wouldn't say destroyed, I would say lost."
Question: "Do you know whether it exists at this
time?" Answer: "No, I don't." Question: "if
it does exist your mother would probably have it,
right?" Answer: "Yes."
When Mr. Hornbach told us not to proceed with
any work, I told him I would pull off the job,
which we did, I didn't think I should go to the
owners of the building to find out why we had been
pulled off. Mr. Hornbach, I believe, stated that
a problem had arisen and we should remove our men
from the job. He did not say what the reason for
the delay was. I believe our office girl added
up the hours that total 155. She did this on her
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adding machine. She double checked her work.
On Exhibit 4 the first line states: February
14 - 7 hours. ‘The next line in pencil has ditto
marks, next in pencil is - 4 hours, February 19th.
the next - 4 hours. The next line says "Edw."
means Ed Morowski. This is all written by my
brother. As far as I can tell the work "Wayne"
was also written by my brother. From February
20th, it goes forward to February 2lst on the
same line. I don't know why it doesn't go down
as I didn't write it. I do not know why this was
not available to me in 1973. I can't explain it.
Exhibit 4 is a partial listing of materials
used at 813 East Wells Street. There is a nota-
tion thereon that reads authorized by Bob. Bob
was the janitor on the job who had control of the
premises, That slip was made out at our office.
The list of materials was made out by my brother,
the part stating authorized by Bob, was typed in
by our office girl. Bob is the name of the jani-
tor. The building has twenty apartments, you can't
go to each one and have someone let you in. Out-
side of the list "authorized by Bob", there is no
other name on Exhibit 4. These names are listed
in the even you have to see someone to get into
the premises. Here the doors were locked at all
times and the first time we went there, Fred Horn-
bach had to get the keys from Bob's apartment to
let us in. After that initial time, I personally
never returned to the premises.
I have no invoices showing what we paid for
these items. I took care of all bookkeeping on
this job as to ordering and obtaining things from
wholesalers. The company had a bookkeeper, I don't
know who it was, it was not myself. The company
was a family affair.
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MR, EISENBERG: I am going to make a motion.
COURT: It isn't going to do you any good.
My mother took care of records. If we had
a CPA or anything, it was not my department. I
do not know who the bookkeeper was.
We went ahead with the work on the basis of
a telephone call without any verificaiion in writ-
ing. After the call, we did nothing to confirm in
writing that we were to do the work. Sydney Eisen-
berg never gave us any authorization, but his rep-
resentative did.
There were two buildings involved here. The
gas regulators were not located at the time. As
I recall, there was supposed to be a new installa-
tion and the meters were to be set by the Gas Com-
pany. All I had was an approximate location. At
the time, I didn't know where the gas regulators
were. I could estimate and take the job because
I knew the approximate location. It would be easy
to see where they were if they were installed at
the time.
As gas regulator is an instrument to reduce
pressure from high pressure to lower operating
pressure. It is necessary on these buildings be-
cause there is high pressure in the gas lines at
the mains. To my recollection, the building had
individual meters and the larger one was installed
on the outside to eliminate all the small meters
on the inside. I only had an approximate location
of all these meters.
zx*** ek
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MR, EISENBERG: Yes, I feel and I believe we
should move for a mistrial on the grounds counsel
had no right to what he is going to do, what he
claims to be highly irregular.
COURT: Your motion for mistrial is absolutely
denied. I am going to finish this lawsuit if it is
the last thing I do.
DIRECT EXAMINATION OF EDWARD R, MARGIS BY MR, KREMBS:
My name is Edward R. Margis and I reside at
3713 North Murray Avenue. My occupation is jour-
neyman plumber, In 1969, I was a master plumber
employed by Ed Margis Plumbing and Heating Co.,
Inc. I am familiar with the job done at 803-813
East Wells Street as I was on that job. I was
sent there by my brother, Richard. I was accom-
panied by two other journeymen plumbers, Ed Morow-
ski and Wayne Hammer.
I made entries on the job ticket marked Exhi-
bit 4 as to time and material; the price listings
were made by my brother. Exhibit 4 does set forth
by date the period of time during which I worked
on the premises of 803-813 East Wells Street. I
first came on the job on February 14, 1969. We
were admitted by the janitor, Bob.
Bob followed us to the boiler room in the
rear of the building. In the boiler room were
situated two heaters, two in each boiler room,
and he showed us where to locate these heaters
for installation. Later, he approved the loca-
tion. We were told to connect the heaters with
the gas and the hot and c-id water lines plus
one boiler we were to pipe the gas pipe over and
drop it down to the approximate location of the
gas burners on each boiler. He showed us where
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the gas supply was. It was located through the
wall of the building and showed us where to place
the heaters. He said we should start the instal-
lation. We then started, that day, to proceed
with the installation.
The next day we again returned to the premi-
ses and we were allowed in by the janitor, Bob.
We all identified ourselves by the patch on our
shirts, that plainly identified the company name.
The uniforms were green, the writing was in gold,
it read Ed Margis Plumbing and Heating Co., Inc.,
it showed up quite well. We wore this identifica-
tion at all times we were on the premises. We also
had a truck at the premises, that too was identi-
fied. The truck was a yellow panel truck that had
a sign approximately five feet by two feet which
bore the company name, address and phone number.
MR, EISENBERG: I am going to object to this
unless there is some indication that the janitor
went outside or some company official went out-
side and saw where the truck was parked in the
neighborhood. There has been no identification
or foundation laid.
COURT: Objection overruled.
BY EDWARD MARGIS: ‘/hile we were on the job,
my co-workers and I were ordered off the job by
my brother at which time we left the job. We
returned to the job again per my brother's subse-
quent order. From the entries on Exhibit 4, it
shows we were ordered off the job on March 4th
and on March 28th we returned.
On the return, on March 28th, we were admit-
ted by the janitor, Bob, and we were wearing the
same uniforms as indicated previously. We also
drove the truck mentioned before. We parked that
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truck approximately twenty feet outside one of the
rooms where the work was being done.
As to Exhibit 4, I prepared the mategxial list
and the amount of materials used, I made the en-
tries as the job progressed and checked them upon
completion. To the best of my knowledge, the mat-
erial listed on Exhibit 4 was brought on the job.
The entries thereon as hours of labor were also
made by me. All of the hours listed were expended
on this job for the purpose of installing the mat-
erials described on Exhibit 4. |
The work was completed on April 8, 1969.
During the time from March 28th to April 8th, we
were not told by anyone to get off the job. Dur-
ing this time, we did see the janitor, Bob, who
in fact, let us in each day or told us the pre-
ceding day that the door would be open.
CROSS-EXAMINATION OF EDWARD MARGIS BY MR. EISENBERG:
There were occasions we entered the premises
when Bob was not there. I was the person respon-
sible for where the lines went. I made the deci-
sion to run the lines from where the gas first
came in. I knew there were gas regulators placed
on the inside area projecting into a laundry room.
It is not a fact that I didn't know there were
two buildings, that I thought there was but one.
I do recall answering the following questions
under oath. Question: "And you don't know whe-
ther it was one building, two buildings or three
buildings?" Answer: “They were connected togeth-
er." Question: “And how many buildings were con-
nected together?" Answer: "It depends on what
you consider one building or two buildings."
Question: "What did you consider it?" Answer:
"I considered it one building. I assumed it was
339
340
341
342
343
142
the same owner of both halves."
It is two structures connected by an arch or
some type of wall made with the same material as
the building. This wall was built previous to our
doing the work. There is an airway between the
two buildings. Defendant's Exhibit 2 is a drawing
I made at the adverse examination I, myself, It
represents the structure of the building, I drew
it to show what this building was that we did the
work in.
The job was a plumbing installation with gas
pipes and water pipes. The location of the piping
was fixed somewhat by the location of the heaters
and the gas supply. Two heaters were moved into
position and two were partially crated. We moved
them over under the supervision of the janitor.
The janitor supervised the placement of the heat-
ers. The heaters that were in the building were
attached to the heating plant that heats the build-
ing itself. I knew that this heating plant was
ultimately going to be eliminated. I had asked
the janitor why the heaters were being replaced
and he indicated they were to replace the ones
that were operating off the boiler. We placed
the new heaters where the janitor directed us to
place them. He told us to place these heaters in
front of the windows facing Cass Street in one
boiler room.
We parked the truck as close to the building
as possible. That was on Cass Street next to the
property. We moved it as it was necessary always
keeping it as close as possible. There was traf-
fic on the streets and parking lots nearby. We
had, however, always managed to find a place, in
fact, we used the same place as often as possible.
I had seen the janitor walk out the back door,
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346
347
348
349
350
143
look down the walk way, and there our truck was
parked. That was in February or March. I am not
sure of the temperature then. I don't recall the
exact dates. I have never worked for the Holland
Furnace Company.
I talked to Fred Hornbach at one time when
we had a job for Laneil Management Company on East
Commerce Street. That job had to do with plumbing
code violations. These are on record with the
Plumbing Department. It is not the truth that I
never talked to Fred Hornbach in my life. I re-
call giving the following answers under oath:
Question: "Do you know a gentlemen by the name
of Fred Hornbach?" Answer: "No, sir." Question:
"You don't know him at all?" Answer: "Not per-
sonally." Question: "And you never met with him
at all?" Answer: "I think I seen someone pointed
out as him on that location. I was never intro-
duced to him." Question: "He had nothing to do
with the supervision of your job, is that correct?"
Answer: "No, the building manager did." These
answers were all given only in connection with
this job.
The janitor never claimed to be a plumber,
only a janitor. I never made an estimate for
that job. I do not know if Laneil Realty Corpora-
tion owned the heaters or not.
MR. EISENBERG: Do you know who owned them?
MR, KREMBS: Objection, immaterial and ir-
relevant.
MR, EISENBERG: This is cross-examination of
the Lawsuit.
144
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Record
COURT: It is not material anyway. Objection
sustained.
MR, EISENBERG: Not material as to who owned
the heaters, your Honor?
COURT: Yes.
BY EDWARD MARGIS;: Wiien we left the heaters
had no vent pipe, they couldn't be operated in
that condition. These were to be put in by others.
351 As far as we connected the heaters, it was accord-
ing to the plumbing code.
COURT: He answered you twice. The hook-up
was done by somebody else.
MR, EISENBERG: At this time, I move to strike.
COURT: Motion denied.
MR, EISENBERG: May I finish?
COURT: I know what you are going to say.
BY EDWARD MARGIS: We checked the water in
352 the heaters at this point. I answered the follow-
ing under oath. Question: "All right, in what
manner did you check it?" Answer: “I don't be-
lieve we filled the heaters. We weren't responsi-
ble for checking the heaters themselves." The
353 final checkout was done by other parties. I re-
call answering the following under oath. Ques-
tion: "Do you have any independent recollection
how many days you were on that job?" Answer:
"No, sir, not at that time." Question: "Could
it have been less than a week?" Answer: "I
can't recall." Question: "You can't recall one
way or the other?" Answer: "No, sir." Question:
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355
356
357
145
"Could it have been as much as a month?" Answer:
"I don't remember." I have just seen Exhibit 4,
it was not available at the adverse hearing. I
don't recall if I had the billing at that time.
In this case, we checked the heaters as far
as fit. We couldn't operate the heaters in the
condition they were in. As far as we were con-
cerned, our job was finished when we left. As
far as I know, my brother was never told by Mr.
Eisenberg to take his pipe out of there. He never
told me to take the pipe out of there. We did
discuss the work when necessary.
I do recall seeing the old heaters in the
building. There was one boiler in each half of
the building. They were comparitively large as
compared to a house boiler but I couldn't tell
when they had been put in. I knew there were
regulators and meters on each side of the building.
MR, .EISENBERG: I will ask you to identify
Exhibit 3 and tell us what it is.
MR. KREMBS: I object, your Honor.
COURT: Objection sustained.
MR, EISENBERG: I will try to comply to your
rules.
COURT: Not my rules, as applied to the stat-
ute.
&
MR, ELSENBERG: I have it on the back,
COURT: Is someone who took the picture iden-
tified?
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359
361
365
146
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Record
MR, EISENBERG: May I be heard outside the 368
presence of the jury?
COURT: No, I am not taking argument on that,
I ruled.
370
BY EDWARD MARGIS: I was never a stockholder
in Ed Margis Plumbing & Heating Company. The com-
pany is still in existence although it has ceased
operation. I do not know the exact date I ceased
working for the company.
371
x*e**
MR, KREMBS: Objection at this time because
the question then posed was calling for speculative
form. 372
COURT: Quit arguing. I haven't ruled on
this yet. You have a right to go into adverse
and ask if he gave those answers and if he says 374
yes.
MR, EISENBERG: I want to object to a ques-
tion in there.
COURT: You did the same thing. Now, gentle-
men, let's not fiddle around, we are not getting 375
anywhere. If this court can help it, we are going
to complete this case.
kk *
378
BY EDWARD MARGIS: I do not know what name
the building was in. I worked previously for the
Laneil Management Company.
x*e*e
147
REDIRECT EXAMINATION OF EDWARD-MARGIS BY MR. KREMBS:
I mentioned before that I entered the premises
when the janitor was not there.
ADVERSE EXAMINATION OF SYDNEY EISENBERG BY MR.
KREMBS:
I am Sydney M. Eisenberg. I live at 3901
North Lake Drive, Shorewood, Milwaukee County.
I am an attorney admitted to the practice of law
in Wisconsin and a member of the bar. My office
address is 1131 West State Street, Milwaukee,
Wisconsin. I own the premises at 803-813 East
Wells Street, subject to a mortgage. I owned
these subject to a mortgage in 1969. I acquired
title from Laneil Realty Corporation in 1958.
x**xe «wk
COURT: I have ruled. Your objection is
overruled. That is Number One, and I am asking
you, Mr. Eisenberg, don't add anything to the
questions. When you were questioning witnesses
you said - just answer my question, yes or no.
Now you answer the questions accordingly.
BY MR, EISENBERG: Exhibit 7 was signed
Sydney M. Eisenberg by me.
x*e ke
MR. EISENBERG: If I understand, the question
correctly whoever made it out, did not spell my
name right.
COURT: That answer may be stricken. Answer
whether or not your signature appears on that.
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380
381
148
MR, EISENBERG: It appears to me that my sig-
nature - if this is a photostat, and I assume it
is -
COURT: The answer may be stricken. You must
answer that yes or no.
MR, EISENBERG: This is obviously a copy of
something.
COURT: Does. your signature appear thereon?
MR, EISENBERG: If your Honor means this is
an original, this is not an original signature.
COURT: Your answer is stricken. Do you
understand my question? Did you sign that of
which you are holding a copy in your hand?
MR, EISENBERG: I signed an instrument appar-
ently originally of which this is not, Sydney M.
Eisenberg, and I also initialed it "S.M,E."" where
they tried to put Laneil Management. I tried to
correct it with my initials.
MR, KREMBS: I ask the latter part be strick-
en.
COURT: The latter part may be stricken.
BY MR, EISENBERG: As I stated before, with
reference to this property, Laneil Management
Company was only a bookkeeping operation to re-
ceive rent.
MR. HUPY: I object. He can ask questions
and he can let the witness answer.
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386
387
149
MR, EISENBERG: I am trying to do my best to
answer.
COURT: Oh, no, you're not. You are not to
be adding to any answers.
BY MR. EISENBERG: It is not true that in
September of 1969, in response to an inquiry, I
gave Dun & Bradstreet information to the effect
that Laneil Management Company, 1131 West State
Street, was an unregistered style used for gen-
eral business purposes.
***ke*
COURT: All right, we are ready for motions.
MR, HUPY: My first motion is for mistrial.
When Mr, Eisenberg was on the witness stand, I
indicated to the court that I had a motion to
make at the court's earliest opportunity. I
think my motion is timely at this time because
the jury is excused. Mr. Eisenberg stated he
was trying to answer questions to the best of
his ability. Your Honor commented - "No, you
are not."
COURT: Let me answer you right off that
your motion for mistrial is specifically denied.
I can recognized as I set here on the bend you
are endeavoring in every manner possible to cre-
ate a mistrial, and this court is not going to
have a mistrial. Your motion is denied.
MR, HUPY: Let me state for the record I am
in no way attempting to cause a mistrial. My
only participation in the trial was when Mr.
Eisenberg was on the witness stand.
EEE
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150
COURT: I am referring to the whole trial.
There have been a number of motions for mistrial
It is denied.
MR, HUPY: Next, Judge, I think when the ad-
verse party calls Mr. Eisenberg to the witness
stand during their case, I have a right to ask
Mr. Eisenberg questions for clarification.
COURT: The court rules that you have not.
MR, HUPY: I will make an offer of proof.
The offer of proof would be with regard to Exhi-
bits 7 and 8 which I believe dealt with the lease
between Mr. Eisenberg and Commercial Coin Laundry
Systems. The offer would be that Mr. Eisenberg
did not prepare the document, and he did not state
he was doing business as Laneil Management.
COURT: Im the absence of the jury, let me
state as a practicing attorney for years I drew
many deeds, and when the signature appears on the
bottom of that deed, it includes everything that
is stated above, whether the attorney drew it or
did not draw it. You made your offer of proof.
MR, EISENBERG: Are you talking about deeds?
COURT: Leases, the Exhibits 7 and 8, the
same thing. Any other offers of proof.
MR, EISENBERG: I have a motion to dismiss.
COURT: Your motion is denied.
MR, EISENBERG: Even without knowing what
it is?
COURT: Yes, I already heard the testimony.
Page of
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151
MR. EISENBERG: I move for a non-suit.
COURT: Denied.
MR, EISENBERG: Do I understand for the rec-
ord you do not want to hear what my motion is?
COURT: Your motion to dismiss.
MR, EISENBERG: I move for non-suit for this
reason, there is nothing to indicate agency in
this case, nothing whatsoever in order for this
court to permit a case to proceed at this point.
I say, it is a travesty of justice that someone
can come in and say they talked to a janitor of
a building, who did not enter into negotiations
with them. Furthermore, as far as Mr. Hornbach
is concerned, no one showed Mr. Hornbach's situa-
tion whatsoever, as to his position with relation
to the Laneil Realty Corporation, which is the
company that owned the heaters. Your Honor would
not permit me to say the heaters were owned by
Laneil Realty Corporation. Certainly for this
record, the testimony in this record by the lady
who testified as being the sole officer of the
company involved stated that her dealing was with
Laneil Realty Corporation. She said it because
she knew it. So the testimony was that the deal-
ings were with Laneil Realty. Your Honor is
bound by this record that Laneil Management Com-
pany is solely an accounting or depository. I
made that very clear. Your Honor took a Dun &
Bradstreet report which was denied and admitted
into evidence, and the report itself says the
information was declarant. This attorney has the
temerity to read a credit report. Your Honor is
so careful about the photographs, you wanted the
photographer to come down, then your Honor per-
mitted Mr. Krembs to read an unverified credit
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392
393
152
report from Dun & Bradstreet. It was declarant
information, and I submit that even though I am
an attorney, that does not turn me into a second-
class citizen. I am entitled to be treated like
anyone else in the Courtroom. I submit this is
unfair, even on the basis of the credit report.
It says his information is declarant, and it also
says it had one employee, and that person is the
bookkeeper. I make it clear Laneil Management
had no right to enter into any agreements. On
the basis of the testimony, what have you got in
the case? You have very considerable. First of
all, you got a company that ran in and ran a pipe
line. There isn't rhyme or reason for what was
done here. I submit further what you have here
on the lady's own testimony she knew that the
work was done between Laneil Management and Margis.
COURT: Your motion for non-suit is denied,
and the reason the court gives, the case is going
to the jury.
DIRECT EXAMINATION OF ROBERT WESTFALL BY MR.
EISENBERG:
My name is Robert Westfall and I am janitor
of the buildings at 803-813 East Wells Street.
I have been such for 11 years. I work for Laneil
Realty which I believe is a corporation. I was
under the impression that Mr. Eisenberg owned
the buildings.
I recall the job in question here. During
1967, 1968, or 1969, someone from Margis Plumbing
and Heating came to the buildings. These build-
ings are not joined in any way, there is probably
thirty feet between them. There is no archway or
anything like it between them. There is only my
tomato patch between them and a flower garden.
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397
398
399
400
401
153
There are also some picnic tables.
With reference to the gas regulators, they
were installed by the gas company prior to 1968.
We had two working boilers in there utilizing hot
water heat. New heaters arrived - they came in
crates. These were to be placed inside the build-
ings to the place where the Gas Company had in-
stalled lines. The Gas Company had placed regula-
tors and piping into the laundry room. Exhibit 3
is an exact replica of the regulator on the side
near the laundry room. On the other side of the
wall, they put a shut-off to go down to the heat-
ers. I was present when the Gas Company put the
regulators in. We already had gas pipes coming
in from outside the building. We also had water
inside the laundry room, The laundry room is just
inside the building with reference to the regula-
tors. To the rear of the laundry room was storage
space measuring 60 by 30. Alot of boilers could
be placed in that space.
I have been working on boilers for forty
years and 1 think I know something about them.
I certainly know how to turn them on and off.
When the new pipe was hooked up by Plaintiff,
they hooked it to the shut-off the Gas Company
installed for the heaters. The wall there is
about a foot thick. The Gas Company had put the
pipes through the walls. Plaintiff hooked these
pipes to the opposite wall across the laundry
pron and across the hall. The pipe is in plain
ew.
When the Plaintiff's people arrived, they
asked me where the heaters were. I told them
they had just been brought inside the building
out of the snowstorm, The man that came said he
402
403
404
405
406
407
408
154
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Record
was a master plumber, he now testified he was a
journeyman plumber. His name is Edward Margis.
No one else came that day. He said he wanted to
know where the heaters were. I showed him they
were not completely uncrated yet. These people
identified themselves as Margis Plumbing and 412
Heating, but I didn't know them. They wanted to
know where we had the heaters. I asked if they
had a contract and he told me that was taken care
of by his brother. I then showed them the laundry
room and where the shut-off was. The following
day or two days later, they arrived with a whole 413
lot of pipes. Just then my wife called and I went
home while they started running the pipes.
I then contacted Mr. Eisenberg's office and
then Margis' office, which was on Ogden Avenue at
that time. I talked to Dick Margis. I told him
to stop work until things get straightened out,
which he did. The heaters were placed on the out-
side of the buildings rather than the courtyard
side where I thought they were to go. I pointed
this out to the plumbers. I told them the heaters
should go in the laundry room by the wall next to
the regulators. I then showed them where the
heaters had been stored and helped them move some
refrigerators out of the way. Where these refrig-
erators had been standing, just to the right of the
shut-off is where I thought the automatic heaters
were to go. In the laundry room was the gas line
and individual meters for all the apartments.
Exhibit 3 shows the gas pipe coming in from 416
the regulator after Margis Plumbing and Heating
people were there. Exhibit 5 shows the pipes
across the laundry room. The pipe wuns clear
across the laundry room, through the hall to the
boiler room. The size of the pipe is reduced
down from one size to another.
155
There is a regulator on the other side of
the building also.
‘eee
I didn't tell anyone from Margis Plumbing
and Heating where to put the heaters. I merely
showed them where we planned on putting them,
which was next to the laundry. I told this to
Mr. Margis and one of his helpers. That was at
803-813 East Wells. The man I told was Ed. I
have only seen him one time before, that was when
they did work at the Sydney Hotel. The Margis
brother's father was alive at that time.
On three occasions, I told Margis' people to
leave, but I only went to the office once to make
a personal plea. At the office I talked to Dick.
I only saw Dick on that one occasion. He was
also there when he came with Mr. Hornbach to talk
prices. I do not know if he gave Mr. Hornbach a
written statement at that time. I do not know if
any changes were made in building plan or work
with reference to the heaters after that initial
meeting.
**eeke*
CROSS EXAMINATION OF ROBERT WESTFALL BY MR. KREMBS:
In 1969, IL resided at 813 East Wells Street.
I resided there for the entire year of 1969. I
was the janitor of the premises then. I resided
there all the while the plumbing work was being
performed by Margis. I was not always on the
premises as I had other work, other buildings to
look after. For a period of time each day before
I went elsewhere, I did janitorial work at 813
East Wells. At various times during February,
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418
419
156
March and April of 1969, I observed employees of
the Plaintiff working.
REDIRECT EXAMINATION OF ROBERT WESTFALL BY MR.
EISENBERG :
When I saw the employees, I asked tham to
leave until they got clarification as to where
the equipment was supposed to go.
RECROSS-EXAMINATION OF ROBERT WESTFALL BY MR,
KREMBS:
I told the employees to leave, a period of
time elapsed and they came back on the job.
REDIRECT -EXAMINATION OF ROBERT WESTFALL BY MR.
EISENBERG:
When they came, I told them I had no word of
clarification and I asked them to contact the of-
fice. When I asked them to leave on this basis -
they said see my brother. This happened three to
five times.
DIRECT EXAMINATION OF R, WALTER GROSS BY MR.
EISENBERG:
My name is R. Walter Gross and I live at
6829 North Ironwood Lane. I am an engineer and
also a construction consultant. I am here under
subpoena. I am a graduate of Marquette Universi-
ty and I hold an M.E, degree, mechanical engineer-
ing which I received in 1945. Since 1938, I have
been involved in the construction field. During
this time, I have built about two thousand units,
both residential and commercial and factories,
industrial work. I have also built apa. cments,
condominiums and residences. I do this for Ju.n
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421
422
423
425
157
Waxman, upon whose staff I am a construction en-
gineer. I also do a considerable amount of pri-
vate work. John Waxman has been a customer of
mine for about seven years. I have had occasion
to design and build buildings in the Milwaukee
area. I have layed out mechanical plans for heat-
ing and hot water,
On two or three occasions, I have visited the
buildings on East Wells Street and have looked at
the hot water system and the two tanks.
I am a graduate engineer doing business with
reference to heating installations for an excess
of forty years. Throughout these years, I have
been involved in the construction of over two
thousand buildings.
In the course of my work, I have viewed the
heating installations involved here. I would say
they were improperly installed in this respect,
the heaters should have been installed from every
aspect right near the regulators for this reason;
Number One, the longer your pipe is the more you
are opening yourself up to maintenance problems;
Two, its cost is considerably more, and also hot
and cold water is right in this laundry room.
x**e«etk
If the installation would have been properly
done, it would have required maybe five feet of
gas piping and about ten feet of hot and cold
water piping. That would have cost about $1.50
a foot installed in 1969. That is for the gas
piping. If you multiply Five feet at $1.50, you
would have $7.50. Multiply this by four heaters
and you would have a bill of about $30.00 in 1969,
for the gas piping. This included labor. As to
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427
428
429
158
the other pipe, being galvanized that would be
$2.00 of foot for inch and half, some places two.
It would need about 10 feet per unit, so that
would be forty feet. Thus, this would be about
$80.00. Add $30.00 for gas piping and $4.00 for
a plumbing permit and the bill would be $114.00
MR, EISENBERG: I assume that you can use the
permits of Iron Fireman?
MR, GROSS: Yes.
COURT: The last part of the question is add-
ing something that is not in the record.
MR, EISENBERG: It will be in the record, I
will put it in the record.
COURT: Mr. Eisenberg, you are a capable
lawyer, but you are taking advantage of us here.
MR, EISENBERG: I am trying to save having
Mr. Gross come back.
BY MR. GROSS: Im addition to that bill, you
might have to add some nipples, couplings and so
forth. These would cost about $50.00 per heater.
This would bring the total to $310.00. I can't
think of anything further that would be added.
There is no way one could presently use the
boiler room without vacating the pipe. I would
say the boiler room is approximately 1000 square
feet. Under State law, one has to have cross
ventilation.
I am acquainted with the area of these build-
ings. They are about a block from Northwestern
Mutual Life building, and about two blocks from
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431
432
433
434
435
436
438
159
the First Wisconsin Center. It'is about a block
and a half from the lake. The building is solid
masonry with a brick exterior. It appeared to be
well maintained.
I am familiar with the equipment in the build-
ing now. The water heater is compact. It is small
and automatic.
I was in court when Ed Margis testified and
I heard him say it would take about twenty hours
at $15.00 an hour to remove the pipe. ‘Thus, it
would run about $300.00 per building.
I had an opportunity to look at the plans
for these buildings. Exhibit 7 I have seen pre-
viously. These plans appear to be the two build-
on involved here. They are not joined by any
arch.
I am acquainted with common practice engaged
in the building business. I am also acquainted
with these practices as they were in 1969. I have
had experience in respect to the relationship be-
tween contractors and owners. I am also familiar
with lien laws.
*e**
MR, EISENBERG: May I ask the court what the
reason is for sustaining it. The complaint says
they are asking for it. I have a right to ask if
it is a fair and reasonable value.
COURT: Objection sustained.
MR. EISENBERG; May I just ask what the
grounds are?
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440
442
160
COURT: Invading the province of the jury.
CROSS EXAMINATION OF H, WALTER GROSS BY MR. KREMBS :
I first looked at this property in 1969, and
then again last year. Finally, I looked at it
about a week ago. I know nothing about the trans-
action between Margis and Laneil Management, but
I do know what I saw on the installation and I do
know what instructions were given to the Margis'
workers.
DIRECT EXAMINATION OF FREDERICK J. HORNBACH BY MR,
EISENBERG:
My name is Frederick J. Hornbach, except for
service I have lived in this’ commmity just about
my entire life. I have been a member of the Amer-
ican Legion. I started in the construction busi-
ness in 1939. My father was in construction and
my grandfather an engineer for the City of Milwau-
kee. I am familiar with construction work.
I am aware of some buildings that Mr. Eisen-
berg owned for twenty or thirty years. There are
several corporations which own several buildings
of which I am responsible for maintenance and
general welfare. These buildings are 770 North
Marshall, 803-813 East Wells, 1029 East Knapp
Street, 1646 North Prospect Avenue, Biltmore
Apartments at 13th and Wisconsin, 1201 West State
Street, where we have some smaller buildings,
trucking terminal. We also have the Sydney Hih
project which we just donated to the March of
Dimes. I have an interest in the various corpora-
tions.
I am a college graduate of Ripon College. I
have a B.S. degree and also an Armour degree in
Page of
Record
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161
engineering in electronics. We have discussed
plans for improving 803-815 East Wells.
x*ke«**
The building is ground floor level, it has
no basement. The new hot water heaters were to
go adjacent to the new gas lines brought into the
building. These was located between the two build-
ings which are rectangular. The Gas Company in-
stalled this line. They also installed two new
regulators.
Margis apparently hooked into this pipe, but
instead of placing the heaters there, the pipe
runs a little bit south makes a right turn goes
clear through the laundry room and through the
top of the boiler room. The pipe is 7-6, 7-2
above the ground.
I did not direct Margis’ people where to put
the pipe in. I figured that was not necessary.
I did not direct them to make the installation of
these pipes.
COURT: Wait a second, what is your objection.
MR, KREMBS: My objection is that counsel in
asking the witness to identify this Exhibit did
~ include in his question the date of that Exhi-
t.
MR, EISENBERG: I don't know if I need his
help to ask questions.
COURT: That may be stricken from the record.
Please don't argue. Ask your question. I am
going to sustain the objection.
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BY MR, HORNBACH: I got the written proposal
of June 22, 1967, shortly after the date of the
contract. I went with Margis to look at the job
before the date of the contract. Margis must have
met me several times. I met in the lobby with Mr.
Margis and Mr. Westfall. This was approximately a
week to ten days before we received that proposal.
It was the first week of June, 1967. The next con-
tact was when I called him in 1969. After receiv-
ing the written proposal in 1967, Laneil Realty
Company, a corporation, went out and got two heat.-
ers. They were purchased around October 31, 1968.
x*wk*
I new told Margis to proceed to hook up the
water lines at any time. On several occasions,
I asked his men to get off the job until we got
this thing clarified and straightened out, because
I had no proposal or anything in writing or auth-
orization. I have no writings on this or with
regards to the pipe lines.
I have been with Mr. Eisenberg for a little
over 10 years. I have no authority to tell Mar-
gis to go ahead and do any work on the premises.
I do recall calling Richard Margis. Over the
years, I must have called him five or six times.
The first time I called him was in 1967, with
reference to hot water heaters for installation
in 1967. The next time was in 1969, I called him
for a conference. This was to see what it would
cost to install these hot water heaters. They
were just going to do the piping for the hot water
heaters. He was going to give me a proposal -
next thing I knew his people were on the job.
At that time, I was engaged in some other
building and I couldn't get there immediately.
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Record
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460
461
462
163
On several occasions I told Margis' men
the job. They would leave, they would Fagg? gg
day or two, then the next thing I knew, they would
be back again. I didn't tell them to go ahead
after they were sent off the job. I then talked
with Mr. Eisenberg and we ordered Mr. Margis' crew
off the job. I never told them to come back until
the matter was straightened out and it never was,
ps rm out, I mean until we got a written
The reason I called Margis in the first
was I knew his father personally, he had eae
work for us.
*ekKE*
The day these people got on the job I knew
they were going ahead with whatever they were
doing. Bob Westphal had called me.
MR. KREMBS: Objection hearsay.
COURT: Objection sustained.
ins MR. EISENBERG: Just calling him is not hear-
COURT: He may answer.
BY MR, HORNBACH: After he called I
Margis and tried to get the men off the J ge
same afternoon I went over to the building. The
installation was not going where it was supposed
to, so we had Margis' men go off the job. I didn't
tell them they could do any work at all.
I met with him to get a proposal, but we nev-
er received a proposal of any sort as to time and
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Record
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467
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469
471
472
473
474
164
material. I never told Margis that Sydney M.
Eisenberg was going to pay for his work at any
time.
x*ekrk
The walls of the building are masonry con-
struction walls. It has nothing but fire stop
which means it has the Underwriters Label on it
in use of fire. We have been using that for ten
years or more.
x**wk*
There is hot and cold water in the building's
rooms. So in reference to planning apartments,
we have plumbing to hook fixtures onto. It has
walls, ceiling, a floor and it was a corner of
the building on the first floor. It has 1000
square feet. Each building contains 20 odd apart-
ments. I have built rooms.
x*ek*
I was present in Mr. Fisenberg's office when
Mr. Margis came in. That was after I sent him a
letter at Mr. Eisenberg's request saying we were
not going to pay him. It contained a demand for
an itemized statement and a demand to know Margis'
authorization. Margis said he got the authority
verbally from me. I told him he received no ver-
bal authorization from me. Mr. Eisenberg asked
him where he got the bill. He had given us a bill
without itemization. I believe the discussion was
to remove the pipes immediately. Mr. Eisenberg
and myself both told him to remove the pipes.
There were apartments on the first floor.
There are approximately three apartments on each
476
477
482
485
486
488
165
floor ahead of what was formerly the boiler room.
It was part of my duties to determine vacancy
and occupancy. I get daily reports on vacancy and
occupancy. Rent depends on the size of apartments.
One apartment is in the neighborhood of $135.00
with heat furnished. They were renting at that
figure. I was not able to complete a one bedroom
apartment in the boiler room area due to the pipes
running in the area. A six foot person would be
in danger of hitting his head.
zx*eee*
The material installed on that iob Ma .
has no value to us. : —
**x*k*
CROSS EXAMINATION OF FREDERICK HORNBACH BY MR.
KREMBS:
I personally visited the premises of 803-813
Wells Street in 1969, while the work was going on
on several occasions, I went there at least two or
three times a week in the course of my normal
duties as business manager. On these occasions,
I would sometimes find Margis' men working and
sometimes not. On at least three occasions, I
told Margis' men to get off the job. Each time
I found them on the job again.
I recall the meeting with Mr. Eisenberg, Mr.
Margis and myself. There was also a representa-
tive of Iron Fireman whose name I don't recall.
At this meeting, there was discussion of the
Margis' bill, As to Exhibit 5, the invoice, Mar-
gis' may have brought it along. I don't specifi-
cally recall seeing a copy.
Page of
Record
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493
494
495
496
497
166
xkkek*
I don't recall if during their discussion,
Mr. Eisenberg asked for an itemized bill. I don't
remember the exact date of the meeting. I recall
that Exhibit 6 was received at our office.
x****
At this meeting, there was a discussion.
Dick Margis presented his bill and there was a
discussion wich Mr. Eisenberg concerning their
charges.
REDIRECT EXAMINATION OF FREDERICH HORNBACH BY MR.
EISENBERG:
Mr. Eisenberg said he wanted to get the pipes
out. I had no difficulty hearing that statement,
it was said loudly. Mr. Eisenberg never said he
would pay Margis $1,500.00 or $5.00 or $10.00 or
$1.00 or any amount. I never agreed to pay any-
thing either. I also wrote a letter to meet at
Mr. Eisenberg's office.
MR, KREMBS: I object. This individual is
incompetent.
COURT: Objection sustained.
BY MR. HORNBACH: There was communication be-
tween Margis and I in the form of a letter.
x*kekek
DIRECT EXAMINATION OF SYDNEY M, EISENBERG BY MR.
HUPY:
My name is Sydney M. Eisenberg.
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167
COURT: Before we go any further, I want to
say to you, Mr. Attorney, if you are going to
question this witness, and I want you, Mr. Eisen-
berg, to answer the questions, and don't be add-
ing to the testimony. You are submitting answers.
You know you are not allowed to do that.
BY MR, EISENBERG: I am 59 years of age. I
was born June 20, 1916, at 517 Saint Germaine
Street, Milwaukee, Wisconsin. I am an attorney
and I own real estate. I have invested in real
estate since I was 20 and I have owned real estate
for over 30 years. I was admitted to practice law
in 1939. I went to law school at Marquette Univer-
sity where I graduated in 1939. I presently have
stock in corporations owning Prospect Heights Com-
pany, Charlan Manor Company, Knapp Street Realty
Corporation. I don't know whether or not 12th
Street Realty Company is still operating. Laneil
Realty Corporation. I also help put together and
own through corporation, the Sydney Hih project.
COURT: Wait a second, we are going to stop
right here. I am sick and tired of your orating
to the jury and deviating from the question. If
you can't keep your attorney in line, then the
court will keep him in Line.
DIRECT EXAMINATION OF SOPHIA P. O'NEILL BY MR,
EISENBERG:
My name is Sophia P. O'Neill. I have brought
certain records with me. They are articles of
Incorporation of Laneil Realty, a Wisconsin Cor-
poration. These have been on file since November
6, 1949, when they were executed. I found no
records of Laneil Management Company.
Page of
Record
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168
CROSS EXAMINATION OF SOPHIA P. O'NEILL BY MR. KREMBS:
I could not find Laneil Management Company in
the Register of Deeds office under corporations.
COURT: What is your motion?
MR, EISENBERG: My motion is that the court
correct what he said.
COURT: All right, the court will make what-
ever statement is necessary for the jury. Have
you any other motions? You are not getting a mis-
trial in this case.
MR. EISENBERG: If the court please, I cannot
be sure this is being put into the record.
COURT: It is, I have never tried a lawsuit
in which the lawyer was so irritating as you have
been in this case. You do not follow the court's
rulings, you don't follow the court's direction,
you continue to argue and discuss matters that
are not pertinent to your direct answer. I want
to say that it is the opinion of the court that
you wanted that mistrial, and I want this on the
record, as far as this court is concerned, I was
appointed in this case after you have had a pre-
vious mistrial, and I am going to try to get this
lawsuit to conclusion by submitting instructions
to the jury. You said you had an offer of proof,
now, let's have the offer.
MR, EISENBERG: I would like to go on record.
COURT: I am not going any further on that.
MR, EISENBERG: I am going to file an affi-
davit.
Page of
Record
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169
COURT: It won't do you any good to file an
affidavit of prejudice.
MR, EISENBERG: I think your Honor is intend-
ing to make sure there is no mistrial.
COURT: The court is trying to keep its tem-
per down, and you have completely ignored every-
thing the court has been telling you, and paying
no attention and doing just as you please, and
now I ruled. If you have an offer of proof or
something, make it now.
MR, EISENBERG: I am going to move on this
record I believe the court has made many rulings
that were not irrelevant. The court has sustained
us on expert testimony. The value of the claim
that was introduced by Plaintiff, we offered to
prove, if the court would permit us, that Mr. Horn-
bach is an expert in the field of heating.
COURT: And he did testify to it.
MR, EISENBERG; He did testify not only to
the field of heating but in the field of building
and construction, and is fully informed.
COURT: He did testify to it.
MR. EISENBERG: He did testify to keeping the
apartment. The record would reflect. I am not
going to say any more,
COURT: Your offer of proof is denied.
MR, EISENBERG: My offer of proof is on the
subject of construction to keep that apartment.
I didn't go out and pay $14,000.00 for heating
equipment for nothing.
509
512
513
514
170
COURT: Make your offer of proof and no argu-
ment.
MR, EISENBERG: We spent approximately
$14,000.00 for heating equipment, to remove the
equipment so that an apartmert could be put in.
COURT: You are not finished on the witness
stand yet. We will continue tomorrow at 9:00 A.M.
DIRECT EXAMINATION OF SYDNEY M, EISENBERG BY MR.
HUPY:
Laneil Management Company is an operation
that only effects collecting. It does not do any
other type of collection. It does only a book-
keeping operation.
x*ke*k*
MR, HUPY: Would you state whether or not
you ever authorized the Ed Margis Plumbing & Heat-
ings Company, Inc. to do jobs for buildings you
own, or corporations you had an interest in?
MR. KREMBS: Objection, immaterial and irrel-
evant.
MR. HUPY: This whole Lawsuit has to do with
whether there was a contract or not.
COURT: Objection sustained.
BY MR. EISENBERG: Fred Hornbach has no auth-
ority to enter into any contract to have work
done without talking to me. This applies to con-
tracts with Ed Margis Plumbing and Heating. Fred
Hornbach's duties were to check the buildings
from a safety standpoint and from a maintenance
Page of
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516
517
519
521
522
171
standpoint, and to see that these janitors a
working. If I called in outside Porton
would have our men work alongside. He was not a
purchasing agent. [I never told anyone from Margis
that Fred Hornbach had any such authority to enter
into contracts.
Bob Westfall was the janitor at 803-813 East
Wells. His job was to keep the halls clean there.
He had no authority to enter into contracts.
**e*E*
I never authorized Margis to do the work.
When I found out they did the work, we had a con-
ference in my office. Present were Richard Mar-
ore Fred Hornbach, myself and gentlemen from Iron
reman.
k*ke«*ek
When I talked to Mr. Margis at this confer-
ence I said - I got a bill here for Thirty-three
hundred dollars, and Mr. Hornbach said he was
trying to stop you from doing this. What's this
all about? He had a statement in his hand which
was not itemized. I said - what's this all about?
He said - we ran a line from the control on the
other side of the building over to the boiler room
and I said to him - there's gas in the boiler room
and water in the boiler room. Why the devil did
you run a line from the opposite side of the build-
ing in a place you already have heaters. Why did
you run a line across the building and give me a
bill for Thirty-three hundred dollars when there
ne = water. I said - was there water, and
e said, yes. Then I said I'll give half the
bill, and furthermore, who told you A sgoah in there
in the first place. There was gas in there already.
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535
172
He didn't say anything, and I said, look, I'm not
going to be taken, and he said - We got a pretty
good lawyer, and I said, who is he, and he said,
Mr. Krembs, and he can take you, and then I said,
let him, if that's the yay its going to be, I'm
not afraid, and he said - the newspapers don't
like you. I said, fine. I'm still fighting big-
otry, I'll still say what I think, and I don't owe
you anything, so take your pipes out of there, I
don't know what they are worth. Please remove
them. I am talking about 50 feet of pipe. You
gave a proposal, which I never signed. The pro-
posal calls for 1400 feet with heaters. Apparent-
ly we got our own heaters because we didn't want
to give you the job. I don't know you, I knew
your dad. He was a wonderful man and did a good
job. I don't know why you came up with a Thirty-
three hundred dollar bill. I told him to get his
things out of there. I was talking about Two hun-
dred dollars. I didn't want it hooked up where
he wanted it to go, the reason I explained. I
told him I was told by the Gas Company it couldn't
be placed anywhere. These gas heaters can be
placed anywhere, they are automatic small heaters,
they can be placed anywhere. Why did you do some-
things like this, and running up a Thirty-three
hundred dollar bill if it were honest. He said -
we can collect that anyway. We'll get the money.
x**e*k*
We planned on using the room for another
apartment. Cost at that time to construct it
would be about $2,500.00 The going rate for such
apartments was $135.00 per month. We have an
occupancy rate of 95% to 98%.
zx**xe«kk
Page of
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540
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542
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173
The way the Margis people constructed the
pipes, it is not safe.
**e*E*
CROSS EXAMINATION OF SYDNEY EISENBERG BY MR, KREMBS;
The meeting described above took approximately
a half hour. During this time, Mr. Richard Margis
was there. After he left, we continued to talk
about him. I categorically deny asking Richard
Margis to cut his bill in half.
TESTIMONY OF RICHARD MARGIS BY MR, KREMBS IN
REBUTTAL:
it spent only about 10 minutes in Mr. Eisen-
berg's office. During that time, I was requested
to cut my bill in half. I made no statements
about having a tough lawyer. During this meeting,
Mr. Eisenberg did not tell me to take out the
plumbing work.
RECROSS-EXAMINATION OF RICHARD MARGIS BY MR,
EISENBERG:
Mr. Krembs was my lawer at the time of the
meeting at Mr. Eisenberg's.
k*keE*
TESTIMONY OF FREDERICH HORNBACH BY MR, EISENBERG:
The conference at Mr. Eisenberg's lasted 30
minutes.
k*eeek
Page of
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174
MR, EISENBERG: We have some motions to make.
MR, HUPY: Judge, I had not completed our
record on offer of proof.
COURT: What do you mean you have not comple-
ted it?
MR, HUPY: I think there were four offers of
proof, we only had time to make one.
COURT: If you have another offer of proof,
come up and make it.
MR, HUPY: Judge, with regard to the testi-
mony of Robert Westfall, he was not allowed to
state what authority he had in regard to purchas-
ing items for Mr. Eisenberg on any corporations
he was associated with. Our offer of proof would
be if Mr. Westfall would be allowed to testify his
testimony would be he had no authority to purchase
anything for Mr. Eisenberg or any of his corpora-
tions, or to enter into any contracts for Mr.
Eisenberg or any of his corporations.
COURT: Very well.
MR. HUPY: Our second offer of proof is in
regard to R. Walter Gross called by the defendant,
I believe the court precluded us from asking him
whether or not it was common practice in the plumb-
ing industry to have a written contract for work
to be done, and his testimony would be in this
offer of proof that it was the practice of the
industry to have a written contract, not a verbal
agreement for plumbing work that was to be done.
Also, in regard to Mr. Fred Hornbach, he was not
allowed to testify as to the plans he and Mr.
Eisenberg had for the boiler room. His testimony
Page of
Record
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175
would be the same, if he were allowed to testify,
as Mr. Eisenberg did, that they were going to put
a one bedroom apartment in each building. In re-
gard to Mr. Eisenberg, he was not allowed to tes-
tify as to certain plans and agreements he had
with Iron Fireman. His testimony would be, the
work, or at least part of the work that was sup-
posedly done by Ed Margis Plumbing & Heating, it
was agreed between Mr. Eisenberg and Iron Fireman
that Iron Fireman would do it. Also, in regard
to Mr. Eisenberg's testimony, if we were allowed
to do so, which we are not, we would prove through
his testimony that he was the only person who was
authorized or who had the authority to enter into
contracts for plumbing for himself or for any of
the corporations which he was associated with,
which owned real estate, that it was his policy
at all times to have a written contract, and that
his past dealings with Margis always involved writ-
ten contract and not oral agreements, and were all
on time and material basis by definite price.
That concludes our offer of proof, Judge. At this
time we would like to renew the motion we made at
the beginning of trial. We have a statement from
the Secretary of State's office stating that the
Ed Margis Plumbing & Heating Co., Inc. is not now
in good standing, and we would move at this time
to dismiss this case because I think under the
statutes of the State of Wisconsin, even if the
company is in good standing at the time the suit
is commenced, if they are not in good standing,
ar “ey yg ghee ori a penta sesgrbamyp gaara tam
sued.
COURT: Do you have a certificate from the
department?
MR, HUPY: Yes. I do. It shows they are not
in good standing.
Page of
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551
176
COURT: They filed an annual report for 1973.
Your motion is denied. :
MR. HUPY: All right, that's it.
zk**xxk*
COURT: And you are moving at this time to
dismiss the complaint?
MR, EISENBERG: Yes.
COURT: Your motion is denied. Also, the
case will be decided by the jury. Now, Mr. Krembs,
how long do you want to talk to the jury, approxi-
mately; I am not going to limit you here at all.
MR, KREMBS: A half hour.
MR, EISENBERG: We object to the second
question. The question is whether or not Fred-
erick Hornbach had authority as general property
manager to enter into an agreement with the plain-
tiff, and then the next question would be - Did
Frederick J. Hornbach hire and direct the plaintiff
to do the work.
COURT: Let's take Question 1: Was Frederick
J. Hornbach in the employ of Sydney Eisenberg,
doing business as Laneil Management Company as
general property manager of buildings at 803-813
East Wells Street? If you answered Question 1
"Yes", then answer the following: Question 3,
that is the same as it was before.
COURT: Let the record show Mr. Eisenberg
requested the special instruction.
zx*eekk
Page of
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563
177
MR HUPY: I think we made a request that the
argument of counsel be taken down. That request
was denied Mr. Eisenberg. We renewed that request
after objecting to objectionable argument by coun-
sel. We requested to have those comments taken
down, and it was again denied.
COURT: That's right.
MR. HUPY: We want the record to reflect that.
Let the record reflect the court reporter was out.
The judge ruled that the objection be denied. We
also object to several of the jury instructions.
COURT: Let the record show with regard to
the jury instructions the court informed each one
of the attorneys to prepare any request for in-
structions or for the special verdict, and they
failed to do so, and the court therefore stated
that it was making its own instruction, and fur-
ther, the special verdict questions were agreed
to by Mr. Eisenberg and Mr. Krembs.
MR. HUPY: Can I complete my record on the
instruction? The first instruction we object to
is the court's instruction on agency. I feel the
instruction itself was slanted in favor of the
plaintiff. It stated certain conditions under
which the jury should find that an agency rela-
tionship existed, but does not conversely state
circumstances or situations by which the jury
should find such relationship.
COURT: The court is not calling back the
jury.
MR, HUPY: The second objection we have to
the instruction, the quantum meruit instruction
on the issue. This was a contract case, it was
178
started as a contract case and tried as a contract
case.
COURT: No, sir, that motion is also denied on
the grounds there was testimony by Mr. Margis to
the effect that he refused to make a speculative
bid on it if the work was going to be done for time
and material. Motion is denied.
MR. HUPY: The last objection we have to the
jury instruction, the court instructed the jury on
loss of future profits. We are not claiming loss
of future profits we are claiming profits up to
the day of trial.
COURT: Future profits is what you are asking
for. That is’ the legal instruction in the book on
profits. That is the one that stands.
x*keeE*
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.