The former appeal was taken by the plaintiffs from an order of the circuit court setting aside the report of the referee in their favor. The action is to recover a balance claimed to be due for materials furnished and labor performed by the plaintiffs for Benjamin S. Patty, the defendants’ testator, pursuant to a certain contract between them. The contract provided that Mr. Patty should give his notes, due in one, two and three years from the completion thereof, for fifty *430per cent, of the agreed price for such, materials and labor. The balance claimed in the action is less than fifty per cent, of the whole contract price, and is, therefore, included in this provision. The action was commenced less than one year after the completion of the contract, and there was no evidence that Mr. Patty was ever called upon to give his notes for the .unpaid balance. This court affirmed the order setting aside the report of the referee, on the sole ground that, in the absence of such proof, presumptively the action was prematurely brought; and the cause was remanded “ for further proceedings according to law.”

The learned counsel for the defendants maintain that the judgment of this court left nothing for the circuit court to do but to render judgment dismissing the complaint; and hence, that it was error for that court to refer the cause for a retrial of the issues. We cannot concur in this view. Certainly the judgment of this court contains no mandate .to the circuit court to dismiss the complaint. It merely directs further proceedings according to law, and does not, and was not intended to, interfere with the power of the circuit court, on proper application, to grant another trial either before a referee or a jury. Had no application been made for a retrial of the cause, the duty of the circuit court is stated in the opinion on the former appeal, 35 Wis., 228. In such case, the court should have modified the report of the referee as there indicated, and judgment dismissing the complaint would have been the necessary result. But nothing which is said in that opinion is in the way of granting the motion to re-refer the cause, when it is made to appear that the evidence which was wanting on the first trial can be supplied, and that the plaintiffs’ failure then to produce it is excusable.

When the circuit court set aside the report of the referee, it undoubtedly had authority in its discretion to re-refer the cause to the same or some other referee to hear, try and determine the issues. In the absence of any mandate from this *431court to the contrary, we see no valid reason why that court may not do so after the affirmance of the order setting aside such report.

It was within the sound discretion of the circuit court to grant the relief ashed by the respondents, and we cannot interfere unless the granting of such relief was an improper exercise of that discretion. Looking into the affidavit upon which respondents’ motion was founded, it seems very clear to us that sending the cause back to the original referee to hear, try and determine it, was not an abuse of discretion. We must, therefore, affirm the order appealed from.

By the Court. — Order affirmed.