Carl Werner, Pl'ff in Error, vs. John Schreck, Def't in Error

Carl Werner, Pl’ff in Error, vs. John Schreck, Def't in Error. Exceptions taken to the instructions of-the. Judge, before whom a cause is tried, where such instructions refer to, and assume to be, based upon testimony given in the causé; the-'party taking such exceptions,, must state, the testimony, in order that this Court cap properly decide whether there was a. foundation laid for the exceptions, or not. Unless this is done, the Court will not notice or decide upon the exceptions. Error to the Circuit CourFof Milwaukee county. This was an action of assumpsjt for work, labor and services rendered^under a special contract for the erection of a building by the plaintiff in error for the. defendant in error. The error upon which the cause was brought into this Court, cpnsists.in the charge made by the Circuit Judge to the Jury relating to the subject matter of the contract, and the evidence given on the trial; but which evidence was not stated in the bill of exceptions. The only importance attached to the. case,, as it cam,e before this Court, and as decided by it, seems to be, that if exceptions are. tajeen to ., the charge of the Judge, on the trial of a cause, which charge relates to the evidence given therein, the evidence must he stated in the bill of exceptions in order, that this Court may see that the charge was inapt to that evidence, and erroneous. The cause was submitted on the written briefs of the parties. Orton, for the Pl’ff in Error. Brown, fot the Def’t in Error.. [MAJORITY — Jackson, J.] By the Court. Jackson, J. The, error alleged in this cause is based upon the .following; charge to the Jury, of the Judge before whom it was tried: £' In the opinion of the Court the plaintiff was required by the contract to perform work within two months from the commencement (of the same, only to the .amount of one hundred,and thirty .dollars, the price .of the lot mentioned in said contract, and the residue of> said work might be performed any time within a reasonable period, under the terms of said .contract.”- And, also, upon his. refusal to charge as follows: “ That the Jury must find by the testimony, that the plaintiff completed the building of ( the house, except plastering the roof, within two months from the commencement of the-.work, or-the plaintiff could not recover upon the special agreement set out in his petition, and setting out.no other agreement he could not recover at all.” The correctness of these objections can only be determined by a reference to the testimony given' upon the trial. Upon examining the bill of exceptions, I find no portion of the testimony is presented, nor is its substance even stated. Nothing appears, therefore, upon the record, to sustain the allegation’of error; and this Court must presumo that the instructions of the court below were correct* Judgment affirmed.