Baasen v. Baehr

7 Wis. 516 | Wis. | 1859

By the Court,

Smith, J.

We think the demurrer was well taken to those portions of the answer to which it applied. The appellant, in his complaint, among other things, states in substance that he was to pay for the completion of the building, according to the specifications and contract, the sum of four thousand three hundred and fifty dollars, “ with such additions for extra work, or deductions from any change in the plans as provided in the specifications, as might be made on the estimate of the architect,” &c., and that the architect agreed upon by the parties, estimated the extra work done at three hundred dollars.

The respondent in his answer admits the making of the contract substantially as set forth in the complaint, and that Dillenburg was the architect agreed upon to furnish the plans and make the estimates ; and then by way of counter-claim, (as we understand it,) insists that after laying the foundation and commencement of the work, certain material changes were made in the plan of the building, which imposed upon him a great deal of additional labor and expense, and claims that he performed extra work, not embraced in the first plan, to the amount of eleven hundred and forty-seven dollars and fifty-one cents, which sum should be added to the contract price for putting up the house.

It is contended, and as we think, with much reason, tint this counter-claim is inconsistent with the original contract, as set forth in the complaint, and admitted by the answer 5 and that the facts set up in this part of the answer, even if true, do not constitute and form a proper subject of a cduu-ter-claim. It is said by the contract that the appellant agreed to pay the respondent on the final completion of the building the balance of the original contract price, then unpaid, with such addition thereto^for extra work, or deductions therefrom on account of changes in the plan, as the architect agreed upon by the parties might allow by his estimate; and that the allegation in the complaint that the architect estimated the extra work done on the building at the sum of one hundred and thirty-four dollars and forty-seven cents, stands un-contradicted and confessed by the answer. From a careful consideration of the terms of the contract, as disclosed in the complaint, it is apparent that the parties stipulated and agreed to rely upon the judgment and skill of the architect in ascertaining the value of the extra work done upon the house, and we think the respondent must abide by the estimate of the architect, or impeach it upon the ground of fraud, mistake, undue influence, or some other good cause. He has not attempted to do anything of the kind. It is true, in another clause of the answer, it is stated that the estimate of the architect, of the value of the extra work on the rear of the building was erroneous, and too low, and should he rejected for that reason. The allegation is not sufficient to show fraud, bad faith, or a mistake on the part of the architect, in making his estimate. The parties saw fit to make the architect the umpire between them, and if he exercised his best judgment, in good faith, and with an honest intention of determining the real value of the extra work, his estimates are binding upon them. His decision ought not to be disturbed without some statement going to show that it was made under a mistake, or was not honest Clauses in contracts analagous in principle to the one now under consideration, have frequently been construed by courts, and the general rule is to hold the parties to the stipulations of their contract, unless they show some good reason for disregarding the decision made by the umpire mutually chosen for that purpose. Easton vs. The Pennsylvania & Ohio Canal Company, 13 Ohio R., 81; Mansfield & Sandusky R. R. Company, vs. Veeder & Co., 17 do., 385; Canal Trustees vs. Lynch, 5 Gil., 521; Ennis vs. O'Connor, 3 Ham. & John 163; Monongahela Navigation Company vs. Fenton, 4 Watts & S., 205: Fanniee vs. Burke & Gordon, 16 Penn. R., 469; Butler vs. Tucker, 24 Wend. R., 446; Smith vs. Briggs, 3 Denio, 73; Merrill vs. Gore, 29 M. R., 346; Parks vs. The Greal Western Railway Co., 3 Eng. Rail & Canal Co’s., 17. If the architect had made a mistake, the respondent should have shown in his answer how the mistake occurred, or in some way impeached the estimate, by alleging that the architect did not exercise a fair and sound judgment in making it, or was actuated by some fraudulent or improper motive. Not doing this, we think the respondent’s counter-claim for extra work cannot be sustained. It was stated on the argument by the counsel for the appellant, that it was not intended that the demurrer should be applied to that part of the answer relating to the defence for the stipulated damages. It was conceded that if the demurrer should be sustained, the latter part of the answer would remain, and that under that part the respondent could introduce proof to show that in consequence of the extra work required to be done, the house was not completed at the time specified. It seems to have been upon this ground that the circuit court overruled the demurrer.

The order of the circuit court overruling the demurrer must be reversed, and the cause remanded for further proceedings.