105 Wis. 122 | Wis. | 1899
Appellant’s counsel contend that the trial' court erred in confirming the report of the referee as to the following: (1) That the principal contract was substantially performed.; (2) that the contract with the Northern Manufacturing Company was substantially performed; (3) that the architect’s certificate was waived; (4) that the damages-to the principal contractor by failure of the Northern Manufacturing Company and its assignee to perform the subcontract were $1,000; (5) refusing to apply, on the claim of the Ashland Lime, Salt & Cement Company, payments made to such company by the principal contractor of moneys furnished such contractor by appellant, Shores; (6) the contract for the plumbing work by Dullanty was substantially pen formed.
1 and 2. The first two. assignments of error can best be considered together. They are mainly ruled on the undisputed evidence by Laycock v. Moon, 97 Wis. 59, and Laycock v. Parker, 103 Wis. 161. The doctrine declared in those cases may be briefly stated thus: Where a building contract provides that the building shall be constructed according to certain plans and specifications to the satisfaction of the supervising architect, who shall inspect all material and work as the building is constructed, with power to reject any material or work not deemed by him to be in compliance with the contract, and to. require unsatisfactory' con
The foregoing is in accordance with authorities elsewhere. Wait, Engineering Jur. §§ 467, 468; Wright v. Meyer, 25 S. W. Rep. 1122; Linch v. Paris, L. & G. E. Co. 80 Tex. 23. In the latter case it was said that ‘ where the owner, under the provisions of a building contract, has a representative •on the ground to inspect material and workmanship as operations progress, and with authority to reject any not ■deemed by him to be in accordance with such contract, and to compel a forfeiture of unsatisfactory work and its removal from the building and grounds, prompt action on the part of such architect is demanded, and any delay to the prejudice of a contractor will operate as a waiver of defects.’ That is on all fours with the case before us. In Wright v. Meyer it is said, on the same subject, “ When the architect is present and has knowledge of the character of material being placed in the improvement without objection at the time, his conduct is an approval of the same which cannot be revised by him to the prejudice of the contractor.”
There is another significant feature about the contract under consideration. The progress certificates were not mere approximate estimates of the value of labor and materials wrought into the building during the previous months, which, under many authorities, are subject to subsequent
A careful reading of tbe contract leads to tbe conclusion that tbe only final certificate contemplated by the parties was tbe last in tbe seibes of progress certificates. There is no call for a final certificate covering all tbe work. The-only place a final certificate is mentioned is where it is said that no certificate except tbe final certificate shall be conclusive evidence of performance of tbe contract. Under sucb a contract tbe last progress certificate is to all intents and purposes tbe final certificate and tbe only final certificate-that is required.
Now it is undisputed that fbe supervising architect, John W. Foster, did not, from tbe beginning to tbe end of tbe
3. The contention that it was error to find that the architect’s certificate of final completion of the work was waived can be disposed of in a few words. The finding complained of really refers to architect’s certificates under the Northern Manufacturing Company contract. It appears from the evidence that, from the beginning to the end of the work under such contract, no. such certificate was asked for or demanded by the principal contractor. Moreover the architect testified that he did not consider he had anything to do with the Northern Manufacturing Company except to see that the work performed by it was according to the contract between the principal contractor and the owner of the building. The right to an architect’s certificate was not in
4. The next contention .is that more than $1,000 should have been allowed against the Northern Manufacturing Company claim as damages for nonfulfillment of its contract. That is grounded on the following premises: (a) The contract was not substantially performed, (b) The measure of damages is the reasonable cost of making the work and material what the contract called for. (c) The delay in completing the contract, for which the subcontractor was liable to the extent of $5 a day, was at least 123 days.
(a) The question of. substantial performance has already been discussed. The greater part of the defects upon which want of substantial performance is predicated by appellant’s counsel were acquiesced in by the supervising architect as building operations progressed, as we have before seen. Such acquiescence, as indicated, precluded subsequent revision of the architect’s judgment as to matters discoverable by ordinary attention to duty. The defects not covered by the implied approval were trifling as compared with those upon which the claim for damages is mainly based.
(b) The proper rule for measuring recoverable difference between substantial and complete performance of a building contract is not necessarily the cost of tearing down the defective work and rebuilding it so as to conform to the contract. It is the reasonable cost of remedying defects, so fat as that can be done practicably, and the diminished value of the building so completed because of defects not so remediable. If a dwelling hoúse were constructed with ceilings six inches lower than the plans called for, the recoverable loss would not be the cost of tearing down the structure and
(c) On the question of inexcusable delay in completing the contract, we are unable to agree that the evidence shows at least 123 days. True, the assignee testified that there was that much delay, but not of inexcusable delay. He claimed that most of it was chargeable to the fault of the architect and the principal contractor. The foreman of the work testified that, had it not been for such hindrances, and additions and alterations of the work as originally laid out, the contract would have been completed without material delay.’ There was considerable other evidence tending to show that most of the delay complained of was without fault on the part of the manufacturing company or its assignee. The proper allowance of time for excusable delay was a matter for the architect to pass upon, subject to appeal to arbitrators if the subcontractor desired. That part of the contract seems to have been ignored by the principal contractor and the architect. The latter testified, as before stated, that he did not understand he had anything to do as between the principal contractor and subcontractor. It further appears by the evidence that he refused to recognize his duties to decide matters of difference between the contractors. Thus it was left for the court to determine how many days’ delay should be charged to the subcontractor. We cannot say that the result is contrary to the clear preponderance of the evidence. Delay caused by alterations in plans, or by conduct of the principal contractor, or any other subcontractor, or by inattention to duty on the part of the architect did not come under the penal clause of the contract. Wait,
In view of wbat bas been said we are unable to say the allowance of $1,000 damages on the manufacturing company contract was contrary to the clear preponderance of the evidence. The burden of proof was on the appellant to show the reasonable cost of remedying imperfections in the building which rendered performance of the contract substantial only, so far as such imperfections could be practically remedied, and the difference between the value of the structure so completed and what it would have been worth if the contract had been strictly followed. Little or no evidence was produced along that line. The proof on the part of appellant was made to satisfy an erroneous rule of damages,— the idea that the delinquent contractor was liable for the cost of removing all defective portions of the building and reconstructing such portions according to the contract. Such evidence was of no value in reaching a correct conclusion. Eeally, it is hard to see where the referee found any certain evidence to base a finding of damages upon, outside of the penalty of $5 a day for delay. That there were some defects for which the principal contractor was entitled to recover damages is quite clear, but we have looked in vain for proof in the record of how far such defects were remediable without unreasonable expenditure, and the reasonable cost thereof, and for proof of the difference between the value of the building, so completed, and its value constructed as the contract required. The decision assessing $1,000 as damages must have been the result of a mere guess or the application of an erroneous rule to the evidence, resulting in giving appellant the benefit of a greater recovery than she was entitled to on the evidence.
5. In respect to the contention that' payments made by the principal contractor Foster to the Ashland Lime, Salt & Cement Company, out of money paid him by appellant,
6. There is left the contention that the decision as to substantial performance of the plumbing contract by Dullrmty-is contrary to the evidence. Most that was said in regard to the first two propositions applies to it. As between the principal contractor and the owner, the architect, either expressly or by his conduct, accepted substantially all of the-work as it was done. Dullmity, who was a practical plumber-of many years’ experience, testified that he completed the-job according to the plans and specifications, and in the best. workmanlike manner as provided in his contract, except as to matters that were changed by the architect’s orders or with his consent. One of the principal defects complained of was that the general character of the work was not first-class. Several witnesses testified in support of that theory, all, however, except the principal contractor and the architect, being persons accustomed to the ways of doing such work in large cities. One was from St. Paul and one from Milwaukee. The test of whether the general character of the work came up to the contract standard was, what was. customarily considered first-class work in the locality where the contract was to be executed, in Ashland, "Wisconsin. It is not improbable that such test differed materially from a Milwaukee or St. Paul test. That consideration probably had some weight in reaching the decision complained of. Dul-lmity, who had been engaged in the plumbing business in the city of Ashland for ten years, testified very exjfiicitly, and in detail, that the work was first-class, as called for by
There is no dispute but that the entire plan of the plumbing work was carried out, except as to matters in regard to-which the evidence is conflicting, and some trifling omissions, among them being two or three soap cups worth ten cents each, and the vent pipes with expanders, which could be put in at very small expense. As to the closets, Dullanty testified that a different kind than the specifications called for was put in by agreement with the architect, and that-the same was true with reference to the wash basins. He further testified that the architect was present frequently during all the time the work was being done and that he found no fault with the work or material; that he, Dullcmty, examined the gas pipes 'with the principal contractor after they were all in, and made every change suggested. There
By the Court.— The judgment of the circuit court is affirmed.