56 Minn. 410 | Minn. | 1894
In November, 1888, the plaintiff entered into two contracts with the defendant, whereby it was agreed that plaintiff should erect two buildings for defendant, for the respective prices named in the contracts, and complete them by May 1, 1889. On February 20, 1889, while the buildings were in the course of construction, the defendant ousted the plaintiff from the possession of the'buildings, and refused to permit him to go on and complete the same under the contract. Afterwards this action was commenced by plaintiff to recover the value of the labor performed and materials furnished by him under the contracts, and the profits which he would have realized from the contracts if he had been permitted
After the defendant had rested, and the plaintiff had called one witness in rebuttal, the defendant asked permission to open his case, and called Mr. Thori, one of the architects, as a witness; whereupon the plaintiff asked permission to amend his reply, and to deny therein that the architects ever came to any judgment, and that any pretended judgment or pretended decision that the architects ever arrived at with reference to the inability upon the part of the plaintiff to perform his contract within the time provided in the contract, or his failure or unreasonable delay in the furnishing of materials, providing labor, and carrying on and executing the contract, was secured and brought about through fraud and gross mistake, induced by the defendant, for the purpose of enabling him to deprive the plaintiff of the benefits of the contracts; that the architects were wholly incompetent, and unable to determine any such question; and that if they did make any such pretended decision, or claimed to arrive at any such pretended judgment, it was solely by reason of their incompetency, gross mistake of fact, and the fraudulent inducements held out to them by the defendant, and through fraudulent collusion with him. The defendant Consented that this amendment might be made, and the case was opened, and the defendant called the witness Thori, who testified in behalf of the defendant, and the trial proceeded at considerable length upon the issues tendered by the amended pleadings.
While there may have been some improper rulings of the court, and improper admissions of evidence before the amendment of the pleadings, yet we are of the opinion that the errors, if any, were of such a character that they were cured or waived by the parties proceeding with the trial of the case after defendant had been granted permission to open it, and by the character of the evidence there
The part of the contract upon which the principal controversy arose is as follows: “It is further agreed that in case of the failure or unreasonable delay of the said party of the second part to provide the necessary labor and materials, in the judgment of the said architects, requisite to complete the work by the time hereinafter set forth, the said party of the first part may, after three days’ notice given in writing, provide other labor and materials, and prosecute the work to its proper completion, and deduct the cost of such labor and materials from the consideration of this agreement.”
The amended pleadings open id the case, so as to litigate the conduct of the architects as to whether their judgment was of such a character that it was within the terms of the power conferred upon them by the contracts, and could be upheld in law and the proven facts.
Omeyer and Thori were the names of the architects mentioned in the contracts. Their conduct in the matter was attacked by the plaintiff, upon the grounds alleged in his amended reply. Without going into an extended discussion of the evidence, we may appropriately refer to some of the most salient points.
The defendant’s witness Thori testified that the other architect, Omeyer, did not see the building, so that Omeyer made up his judgment in the matter from what Thori said to him about the way the work was progressing; that he (Thori) construed the contract between the parties as one which required plaintiff to work on the contract every day, and that it was the duty of the plaintiff to complete these buildings as soon as possible, whether before the 1st day of May or after, and that he had the absolute right to insist upon the plaintiff’s working every day if the weather permitted.
Omeyer’s office was in St. Paul, where the case was tried, and he was there during the progress of the trial, but, for some unexplained reason, he was not called as a witness. His judgment, therefore, rested upon what Thori had told him of the condition of the work on the buildings, and the amount of material furnished by the plaintiff. These facts were only known personally to Thori, and not to Omeyer. But the plaintiff was entitled to the judgment of both architects, upon each one ascertaining the facts in the case as to the default of the plaintiff. Omeyer did not examine the building,
Upon all these facts, the ease was one for the jury to determine, and especially upon the question of fraud and the other issues raised by the amended pleadings.
(Opinion published 57 N. W. Eep. 943.)