Brust v. Lamoreux, 161 Wis. 142

Brust v. Lamoreux

161 Wis. 142 | Wis. | 1915

Siebecker, J.

Tbe appellants assail tbe court’s findings of fact, wbicb are to tbe effect that tbe plaintiffs’ claim for services of 1913 was not for part performance of tbe original agreement with Lamoreux of 1908 and that tbe services embraced in tbis claim were rendered after tbe 1908 contract bad been specifically and completely performed. Tbe terms of tbe original contract were to tbe effect that tbe defendant Lamoreux employed tbe plaintiffs as architects to’ furnish plans and specifications for tbe construction of a residence for him at tbe city of Beaver Dam; that they were to superintend its construction, issue certificates for work performed and material furnished in tbe progress of construction, and to issue final certificates of approval of tbe work. It appears that tbe plaintiffs commenced performing these services in 1908 and that tbe building was practically completed in 1910. Mr. Lamoreux took possession of tbe premises in September, 1910, and continuously resided there until tbe time when tbe plaintiffs claim to have rendered their last item of service included in their claim for a lien under their original contract *145witb Lamoreux. This service consisted of an inspection of the heating plant and the issuing of a certificate for a partial payment thereof. It also appears that no final certificate of approval of the heating plant has ever been issued. The controversy between the parties centers about this item of service which the plaintiffs claim was rendered as a final performance of their contract. The omission of plaintiffs to issue their final certificate of approval for the heating apparatus is in accord with the claim that Mr. Lamoreux’s acts and conduct in respect thereto were an acceptance thereof. The facts and circumstances disclosed that Lamoreux used the heating plant in the building after September, 1910, throughout the years 1911, 1912, and up to the month of June, 1913. This operated to modify the terms of plaintiffs’ contract requiring their certificate of its approval. It necessarily follows that plaintiffs’ services in June, 1913, were not a part performance of their original engagement with Lamoreux, but rested upon a separate and independent obligation. The fact that rights of third parties, the mortgagees, have intervened emphasizes these considerations and requires that the want of continuity of the services under the original contract be given its legal effect. It is also apparent from the evidence that the plaintiffs did not continue in the performance of their contract throughout the year 1912. The evidence is too vague and speculative to warrant the conclusion that the plaintiffs were engaged in performing services actually required to carry out their agreement. The trial court evidently concluded that the building was in fact completed in 1911 as contemplated by the contractors, Lamoreux, and the plaintiffs. We are of the opinion that this conclusion is justified by the record. In the light of this state of the case the court correctly held, as a matter of law, that continuity of services by plaintiffs under their contract was interrupted, and that the services rendered by plaintiffs in 1912 and 1913 were not within the original contract of plaintiffs’ employment, and *146properly denied tbe plaintiffs’ claim for a lien as demanded? in tbeir complaint. It is obvious tbat Lamoreux accepted' tbe building before June, 1913, and tbat whatever service-plaintiffs performed for bim after sucb acceptance was not witbin tbe contract relied on in tbis action. There is no objection to tbat part of the judgment allowing plaintiffs a lien for tbe $9.90 as indicated in tbe judgment.

By the Gourt. — Tbe judgment appealed from is affirmed-