Edward E. Gillen Co. v. John H. Parker Co., 170 Wis. 264

170 Wis. 264 | Wis. | 1919

Lead Opinion

The following opinion was filed March 4, 1919:

Eschweiler, J.

The material points upon which the appealing defendant challenges the rulings of the court below and its disposition of the case are substantially as follows :

First. In entering judgment for $8,275, the amount fixed by the stipulation recited above of May 25, 1917, on the grounds: (a) that such amount, by the terms of the stipulation referred to, is out of this case and could form no part of thé judgment herein; and (b) that in any event it could not be allowed until and after the defendant itself had been paid its final balance due .from the owner of the building by reason of the terms of the contract.

Second. In allowing interest from July 7, 1916, on the damages found, for the reason that, the claim for such being in the nature of unliquidated damages, interest was not a proper charge upon the same.

Third. That by the contract between the parties, particularly articles VIII and XXIII, above quoted, the parties had provided in effect that as between them the remedy plaintiff might have for any delay caused to plaintiff in its carrying on the work wás limited solely to an extension of time to be given to plaintiff for its completion of the work beyond the time stipulated in the contract equal to the length of time it was so delayed, and by necessary implication excluding any monetary allowance.

Fourth. In permitting the jury to consider improper elements of damages, if any such were to be allowed, in arriving at their verdict, including (a) rental value of plaintiff’s plant during such periods of delay; (b) the value of the services of Mr. Gillen, the president and general manager, and Mr.'Harrington, the secretary of the plaintiff.

We are satisfied the lower court took the proper view of the stipulation in holding that the purpose and intent was to withdraw, so far as the trial of the case was concerned, any question as to the amount of the items therein included, and to dispense with the necessity of proof being offered by either party on the trial with reference thereto, and that when the trial as to the disputed items was ended and ripe for judgment upon them there then should be included in any judgment the agreed sum of $8,275. The trial court was also right in holding that interest should be allowed by the language of the stipulation itself, and from June.l, 1917.

This stipulated amount was the sum of three of the items, together with some accrued interest, in plaintiff’s two causes of action. Defendant executed its voucher' therefor and took a receipt from plaintiff ás a release for such claims. All this was therefore, by virtue of sdch stipulation and by the portion of the amended answer quoted above, an admission and not a denial of liability. It was a present liability and payable presently. Douglas v. Vorpahl, 167 Wis. 244, 166 N. W. 833. It could not be controlled as to time of payment by the provisions of the contract relied upon by the defendant, first, because it did not say so, and secondly, because it was an unqualified admission as to an obligation payable in money, while the provision in the contract relied upon provided for the payments to be partly in money and partly in stock of the corporation owner of the building, and it therefore took itself out from the contract.

We are satisfied also that the court below ruled correctly in allowing interest upon whatever sum is properly to be found as the amount of damages for the claim of delay.

While the earlier authorities in this court, which alone are relied upon by appellant, drew the line somewhat strictly as to the allowance of interest in such class of cases where recovery was sought for unliquidated damages, the rule has been extended in later years so as to permit, in cases involving a claim for. damages arising from breach of a contract and where the amount cannot be ascertained from the contract itself and requires the consideration of evidence before it can be assessed, a sum to be allowed equal to interest at the statutory rate from the time when the br'each occurred, rather as an additional penalty and to more nearly make the injured party whole for the use of the money which has been thus determined to have been withheld from him, than as interest in the ordinary acceptation of the term. Such has been the repeated holding, of this court. Gross v. Heckert, 120 Wis. 314, 330, 97 N. W. 952; Bagnall v. Milwaukee, 156 Wis. 642, 146 N. W. 791; Voigt v. Milwaukee Co. 158 Wis. 666, 149 N. W. 392; Peters v. Nat. S. Co. 167 Wis. 131, 163, 166 N. W. 43.

Under the third point presented by defendant, namely, that by the terms of the contract itself monetary damages for any delay were by implication excluded, it urges that under article XXIII, above quoted, giving the general contractor the right at any time to suspend the whole or any part of the work without compensation to the subcontractor other than extending the time for completing the work to an equal period, there was in effect such suspension of the work rather than a delay. That it was so considered by the plaintiff is urged by reason of negotiations between the parties at the end of March, pursuant to which plaintiff wrote a letter of confirmation to the effect that plaintiff was to take one of its pile-drivers out of this foundation entirely; it was then to begin driving with its other one and 'finish a certain portion of the area left outside the Birchard Block; then to proceed in another portion of the area where the excavator was then working, and that as soon as the Birchard Block was razed and the excavating completed, to proceed with the area covered by that block. It further recited that this arrangement is made on plaintiff’s part to help overcome the decided delays and .extensive expense that it had been subjected to on this site.

No reference, however, was made at any time by either of the parties to this being considered in any way the exercise of any right by the defendant under this particular clause. Neither was it apparently so considered at any time during the trial, nor were any requests made to the court to submit any question possibly arising under this particular clause to the jury, nor was it specified in the motions made by defendant for a nonsuit or directed verdict. There is not sufficient in this letter nor in the testimony to warrant the court on this appeal to how say fhat there was such an exercise of any power or right given to the defendant under this particular clause, or any such recognition by plaintiff of any such power, that the question of the liability of defendant for the delays in question can be now so determined.

Defendant further urges that by the provisions of article VIII,. considered in connection with the provisions in article VII for the payment of $100 for each day’s delay as liquidated damages, and the following undisputed facts, it must be now held as a matter of law that the allowance of additional time for the completion by plaintiff of its part of-the work was the sole remedy for the delays:

’By a letter written February 11, 1916, when the plaintiff had been unable to start as yet with the pile-driving, although under the contract it was required to have finished the west half of the required area by the 31st of January, it refers to this clause for $100 per day and asks that the same be annulled. No written answer was made to this' request, although one of the defendant’s officers testified that an oral consent to such an annulment was given, and the defendant appears to have never made any claim as against the plaintiff by reason of such clause.

Again, on March 25, 1916, plaintiff wrote to defendant speaking of the many delays which have prevented it going ahead with the work, and further saying:

“We know they are all well understood by you, and we know that you have made due allowance therefor in considering the time when the work should be finally completed; . . . but we are now in a position where we are obliged to claim further loss of time for reasons that are entirely avoidable.”

The letter then speaks of the delay caused by the concrete contractor in starting a concrete elevator and mixer upon the site, so obstructing them in their work that they have to stop their pile-driving, and closed by saying:

“We regard the obstructing and hindering of our work in this manner not only as a good and sufficient excuse for extending the time within which our work should be completed, but as a distinct loss and damage to our company, and, as stated, we hope you will take advantage of your written agreement with the subcontractor to stop it.”

All this, however, is insufficient, in our judgment, to support such contention.

Neither can we say that there is any such conclusive effect from the language of these provisions in the contract, ■ particularly the language, so much relied upon by defendant, in article VII to the effect that in the event the subcontractor be obstructed or delayed by the neglect or delay of any other contractor there shall be an allowance of additional time ‘to him for the completion of the work beyond the specified time. Several cases are cited by appellant which it claims sustain its position on this point, but no good purpose would be served by discussing them and pointing out the distinctions that exist between the language of the contracts therein involved and the present one. The present contract neither expressly assumes liability by the general contractor for delays caused by it, nor does it expressly exclude its liability for monetary damages for delays caused by it, and does not expressly provide for such a situation as has here arisen.

The general rule therefore applies, that where labor and material are to be furnished and rendered by the one party and to be paid for by the other, and the one furnishing the work, labor, or material is dependent to some extent upon the other party performing his part or providing for the prompt performance by others of a portion of the work, there arises by implication an obligation on such person situated as is the defendant here, not only to refrain from doing that which will interfere or impede the contractor in the performance of his part, but that it will also do all that which is reasonably necessary in order to enable the contracting party to so perform. For a failure in either respect damages can properly be awarded to the person so delayed or impeded. Loehr v. Dickson, 141 Wis. 332, 336, 124 N. W. 293; Manistee I. Works v. Shores L. Co. 92 Wis. 21, 28, 65 N. W. 863.

This was the rule adopted by the trial court in his charge to the jury.

It is true that under the contract here in question the defendant did not become a guarantor for the prompt and faithful performance by other subcontractors of their respective subcontracts, and mere proof of such failure or neglect by such other subcontractor would not be sufficient of itself to place the burden upon the defendant of proving that it was free from fault in connection with delay or damage. This was also recognized by the trial court in charging the jury that they must find, in order to answer the questions as they did, that there was some direct interference by defendant or failure to do that which it could reasonably be expected to do under the circumstances to see that there was no interference by other subcontractors with the plaintiff’s progress. While in this case there was much evidence of delay and apparently inexcusable neglect on the part of the other subcontractors by which the progress of the work was delayed, yet at no time during the progress of the trial did the defendant request the court to separate and exclude from the consideration of the jury such particular delays which might properly be traceable to the faults of such other subcontractors, rather than that which was directly caused by the defendant itself. Defendant relied all the way through the trial upon its broad claim, and upon which it elected to stand both in the court below and here, that no damages whatsoever for any delay could be recoverable, because of the provisions of the contract above quoted. No attempt was made to single oút and separate the delay that was caused by reason of the injunctional proceedings preventing the wrecking and the excavating after wrecking of the Birchard Block on the northeast corner. Possibly, if such question had been so raised and presented to the court, it might have excluded from the consideration of the jury-as an element of damages some at least of. the time during which the work was so prevented from progress, there being no evidence in the record from which it could be held that the defendant was negligent in any way in looking after such proceedings or was responsible for the same.

Again, there were some delays to the work on account of the site being flooded at times, particularly for a certain period owing to a flood in the Milwaukee' river, and still no attempt by defendant to have such period or periods segregated from the rest.

There can be no question, however, but that, for the period at least of ten to fourteen days during which pile-driving was stopped by reason of the defendant insisting that the obligation was upon the plaintiff and not upon itself or some other subcontractor to remove the foundation walls of the building at the southeast corner of the site, there was a plain breach of the obligation of defendant toward plaintiff. For such period it could properly be chargeable with' the consequent delay by its assuming to insist upon a position that was not warranted under its contract.

In any view of the case, therefore, there were some periods of delay during the continuation 'of the work when defendant should properly and beyond question be held chargeable for damages caused thereby to the plaintiff, and the record here presented makes it impossible for us to now carve out from this general finding as to the amount of damages such periods of time as might have been excluded.

The fourth and last proposition urged by the plaintiff on this appeal is that improper elements of damage were allowed to be considered by the jury. This includes rental value of plaintiff’s plant during the periods of delay, and the value of the services of Mr. Gillen, the president, and Mr. Harrington, the secretary.

Plaintiff’s secretary, Plarrington, testified over objections that on account of the delay about three and one-half months’ extra time was required of the services of Mr. Gil-len, president and general manager, and of himself, and that such extra times were reasonably worth $2,049 and $983.57, respectively, aggregating $3,032.57. „

The plaintiff is a going concern, with other work being undertaken and executed by it during the same period in which it was doing this work and without having employed or retained the services of either Mr. Gillen or Mr. Harrington particularly with reference to this contract, and, not having actually paid them any more during that year than it would have otherwise, ought jnot to have such items considered in the nature of such special damages as could be charged against the defendant.

Express exceptions were also taken to the portions of the charge authorizing the jury to consider these substantial items, and it was prejudicial error to disregard such objections and exceptions.

As to the other elements of damage, the jury were permitted to consider the reasonable rental value of the equipment of the plaintiff for the period during which its use was interrupted, so far as this particular job was concerned, by the delays claimed to have been caused by defendant. Estimates were received as to what was the reasonable rental value of such equipment, consisting of scows, pile-drivers, and a tug, and computations were made from such estimated daily rental value of the various items of such equipment for the period from the 14th day of February, 1916, when the contract should have been completed, up to and including July 7th, when the last pile was driven, but crediting the defendant with the time when the equipment was actually used on such job as well as for such time as it was used on other work undertaken and carried on by plaintiff during the same period. It is now and for the first time urged by defendant that as to a portion of the time considered in the estimate as to the rental value of one or more of the scows used by plaintiff in loading, handling, and unloading the piles, such scows could not, under the testimony, be considered so in the service of the plaintiff with reference to this particular contract as to be considered a proper element of damage. This might well have been a proper objection on the 'trial, but we cannot now pick out particular portions of such elements some parts of which were proper, where no attempt was made to so pick them out on the trial.

We regret that the record on the question of damages is such that we cannot now finally dispose of this case.

On September 30, 1916, the plaintiff presented to defendant its claim for final payment for the balance under the contract for extras for the work done. In this application was the following: “Damages caused by delay to our work by your failure to have premises ready for us to proceed at time agreed, $2,500.”

The account between the parties not having been settled, the following December the plaintiff took up with the architects of the building the question of the dispute between the parties hereto, and at that time, by letter of December 4th, they withdrew the item, of $2,500 above mentioned and stating in effect that they had had an accurate auditing and account made and thereby determined that the amount of such damages for delay was greatly in excess of the $2,500 and amounted to over $16,000.

It appears that what was in the nature of a bill of particulars as to these items was, pursuant to some agreement between the respective counsel, furnished by plaintiff and referred to at various times during the trial, and it apparently contained a large number of items making up this $16,000. Such bill of particulars was not made a part of the record before us; and it has been a difficult matter to ascertain the particular items and amounts thereof which were before the jury in arriving at the amount of damages assessed by the latter at $7,713. The items, however, as can be picked out from the record as being before the jury, were about as follows :

Actual labor costs . $6,746 25

Computed cost at time of entering contract at so much per lineal foot piling.. 4,118 00

Difference claimed as excess cost. $2,628 25

Extra time of Mr. Gillen and Mr. Harrington. 3,032 57

Extra liability insurance. 141 00

Extra expense of operation of steam launch. 350 00

Extra fuel. 215 00

Cost for additional lines used on drivers. 350 00

For towing defendant over, tugs ...'. 74 00

$6,790 82

At the maximum prices as testified to by the witnesses, the rental value of the respective items of the equipment, estimating the rental value of the tug as including the crew, would total in round numbers $13,000, and at the minimum prices $8,300, making the totals c$ these and the above items between $15,000 and $20,000.

In these respective periods there was given separately the number of Sundays included. The rental value of the equipment for these included Sundays would be at the maximum prices about $2,500 and at the minimum prices about $1,800.

No suggestion wqs'made in the charge nor request to so charge made, thíit such Sundays should not be included in the period, fob’ which damages were claimed, under the rule in Raynor v. Valentin Blats B. Co. 100 Wis. 414, 76 N. W. 343, or in Sentinel Co. v. A. D. Meiselbach M. W. Co. 144 Wis. 24, 128 N. W. 861, where the court took judicial notjue of the items there involved done on Sundays and held thát no recovery could be had thereon, and we cannot, therefore, assume that such items were disregarded by the jury. /Although the damages at less than one half of the above minimum wére assessed, yet from the nature and the prominence given to the item of over $3,000 for the estimated value of the services of Mr. Gillen and Mr. Harrington by the rulings on the trial and by the charge, we cannot but feel that a substantial error was committed, and we cannot assume that such an item had been discarded by the jury in its computation.

We assume that the motion for judgment made upon the stipulation fixing the amount of claims at $8,275 was made under sec. 2892, Stats., although no reference to such statute is made in the briefs or in the record. In view of the construction we are now giving to the stipulation and its effect, we think the court may order the defendant to satisfy that part of the claim and might enforce such order as it enforces a judgment or provisional remedy.

We see no just reason why the defendant should delay the payment of such amount while litigating the question of damages, and the tidal court may therefore, when this record is remanded and upon application of plaintiff, so direct the defendant to satisfy the claim to the amount stipulated of $8,275, with interest therein from June 1, 1917, so that payment of such admitted and just amount may be made forthwith in case further litigation is necessary.

We deem it proper to give the plaintiff the option of reducing the damages as •'■found by the jury by the sum of $3,032.57, with interest on'such.reduced sum from July 7, 1916; otherwise a new trial’to be graiii^d upon the question of damages.

By the Court. — Judgment reversed, with directions to the court below to permit plaintiff to take a judgm&ijt wherein the damages as found by the jury shall be reduced to the sum of $4,680.43, with interest on such sum from July 7, 1916, and with the other items of such judgment as befipre, or, in case of the failure of plaintiff to exercise such option, then that a new trial shall be granted upon the question ótf damages; in the event of a new trial the plaintiff be per^ mitted to have an order requiring the payment forthwith of; $8,275, with interest thereon from June 1, 1917; appellant' to have costs on this appeal.

On May 27, 1919, the court granted a motion by respondent for a rehearing and ordered a reargument on the following questions:

(1) Under the evidence before the court, is plaintiff entitled to recover for the services of Gillen and Harrington during the periods of delay?

(2) If not, what (if any) additional circumstances are there which might be brought out on another trial which would warrant such a recovery ?

The following opinion was filed November 4, 1919:

---

Rehearing

Per Curiam.

Upon the rehearing in this case the’tourt is of the opinion that the questions presented on this appeal were rightly decided. It is a conceded fact, however, that since the entry of the original judgment in the court below, the defendant company has gone into bankruptcy. For that, reason and on the application of appellant to that effect, it is ordered that the mandate of this court be modified so as to read as follows :

Plaintiff is permitted to file in this court, within twenty days from this date, its election to reduce the damages as found by the jury by the sum of $3,032.57, and that thereupon the judgment as then so modified be affirmed; in the event of. failure to so elect, the judgment will be reversed and a new trial granted on the question of damages, and in such event the plaintiff be permitted to have an order requiring the payment forthwith of the sum of $8,275 with interest thereon from June 1, 1917. " Appellant to have costs on the appeal and on the motion for a rehearing. ^

On December 2, 1919, the court directed entry of the following :

The plaintiff having elected to consent to the modification of the judgment herein by reducing the damages found by the jury by the sum of $3,032.57, and such election having been filed in this court:

It is adjudged that the judgment be modified by reducing the same from $17,391.08 to $14,036.08, as of April 15, 1918, and as so modified be affirmed, appellant to have costs on this appeal and on the motion for rehearing.