103 Wis. 381 | Wis. | 1899
As respects the plaintiffs’ claim, the testimony is confused and conflicting. Sufficient appears, however, to warrant the conclusion that the defendant John Ziehl ordered the work in controversy done, independent of and some time prior to the performance of the work by plaintiffs under their contract with Klann, and thereby became personally responsible therefor. There is no testimony in the case connecting the defendant Ottillie Ziehl in any manner with this claim, but the question of plaintiffs’ right to a lien will be disposed of in a subsequent branch of this opinion.
The judgment in favor of the defendant Klann cannot be supported either upon the evidence or the findings. His right of action is based upon a written contract with the defendant John Ziehl. In that contract he agreed to finish and complete the building to the satisfaction and acceptance of the architect. It was certainly competent for the parties to make this stipulation. Cases are numerous where contracts of this kind have been sustained, and they all agree that the satisfaction of the architect, and the execution of the certificate by him, becomes and is a condition precedent to the right to sue for the contract price, unless the refusal to certify -should be disregarded on the grounds of fraud or bad faith, or clear evidence of mistake, on the part of the architect. Hudson v. McCartney, 33 Wis. 831; Tetz v. Butterfield, 54 Wis. 242; Wendt v. Vogel, 87 Wis. 462; Boden v. Maher, 95 Wis. 65. And see Burnham v. Milwaukee, 100 Wis. 55.
It is true, the referee found that Klann substantially completed the work according to the contract, and that “ on the
The judgment entered binds the interest of Mrs. Ziehl as owner of the building, and- also makes her personally responsible for the debts against it. There is absolutely no foundation to sustain this conclusion. Neither plaintiffs nor
The contract provided that there should be no charge for extra woi’k unless the price was agreed upon and noted on the contract. The referee allowed about $39 for extras, but failed to find any agreement therefor, or waiver of this condition of the contract. The contention in this case emphasizes the importance of such a stipulation. No claim for extras should have been allowed, except upon proof that the contract had been complied with in that regard, or that there had been a waiver of its terms. Neither of these conditions appears in the testimony or in the findings.
The judgment provided for a personal judgment against Mrs. Ziehl for any deficiency. No judgment for deficiency was warranted against either defendant, because it was not demanded in the complaint or answer of Klann, although that might not be reversible error. See sec. 3326, S. & B. Ann. Stats.
Our conclusion is that the plaintiffs are entitled to a personal judgment only against John Ziehl for the amount of
By the Court. — The judgment of the superior court is reversed, with costs against both the plaintiffs and defendant William Klcurm, and the cause is remanded with directions to enter a personal judgment against the defendant John Ziehl, without costs, for the amount of the plaintiffs’ claim and interest, in favor of the plaintiffs, and for a judgment in favor of the defendants John, Ziehl and Ottillie Ziehl against the plaintiffs and defendant William Klann for costs.