207 Wis. 10 | Wis. | 1932
The following opinion was filed November 10, 1931:
It will be noted that the contract entered into by the parties is but a mere skeleton in form. It specifies certain things which the contractor undertakes to perform, but contains no specifications with reference to the manner of performance, or the material to be used, or the plans to be followed. Under such circumstances it is not surprising that it was productive of more or less controversy between the parties. That there was such controversy, abun
Neither party should have entered into such a blind and indefinite contract, but the plaintiff, who was a contractor and builder, and who himself prepared the contract, should have held in greater anticipation than the defendant the controversies that were quite likely, if not certain, to arise; and justice requires that the defendant shall be protected from any loss arising from this unfortunate arrangement, so far as fixed rules of law applicable to the situation may be invoked for that purpose.
The finding of the court that the plaintiff “was prevented from completing performance of the work under the contract by the conduct and action of the defendant” cannot be disturbed, as we think that finding is not against the , clear weight or great preponderance of the evidence.' However, that finding does not go very far towards determining the rights of the parties, as it is not found that the defendant wrongfully prevented the plaintiff from completing performance of the work. It makes considerable difference with reference to plaintiff’s right to recover whether the refusal to ■permit his continuance of the work was due to a breach of the contract on the part of the plaintiff or whether such refusal amounts to a breach of the contract on the part of the defendant. While the court made no express finding upon this question, we think it to be inferred from its judgment that a certain portion of the work at least, was not in com
We do not feel like disposing of this case upon the record. The findings should be more definite upon the question of whether the defendant’s interference with the prosecution of the work was unjustified, and whether plaintiff breached his contract, and if so, then the evidence should relate more fully to the question of whether there was a voluntary acceptance of the work, and there should be a finding upon that question also. There is no contention in the case, nor does the evidence show, that there was a substantial performance of the contract. The cause of action set forth in the complaint is based on contract. It is quite apparent that if the plaintiff can recover at all, it is upon quantum meruit. We suggest that the complaint should be amended in this particular.
By the Court. — Judgment reversed, and cause remanded for a new trial.
A motion for a rehearing was denied, with $25 costs, on February 9, 1932.