116 Wis. 256 | Wis. | 1903
In the presentation of this case, counsel have discussed the rules of law governing the rights of parties upon the partial completion of an entire contract in each of three different phases: First, when the breach is committed by the plaintiff wilfully, without fault of the defendant, and without any excuse; secondly, when the failure to complete the 'contract is due to the wrongful act of the defendant, preventing the plaintiff, without default on his part, from completion ; and, thirdly, an intermediate phase, where neither party is strictly at fault, but through oversight, or by force of cir■cumstances beyond the control of either, the work is not fully ■completed, but a portion of it performed at expense to the plaintiff, resulting in substantial benefit to the defendant. Of course, when it is ascertained which of these phases is presented in the individual case, discussion of the rules of law •governing the others is unnecessary. It becomes necessary, therefore, to first consider the facts of this case, to which must be applied the law in deciding upon the rights of the parties.
A referee, with whom has concurred the trial court, has rattempted, in an exhaustive finding, to settle those facts to
To the situation thus summarized the' rules of law applicable are not doubtful; indeed, are not seriously controverted by appellant’s counsel. If appellant wrongfully prevented plaintiff, not in default) from completing its contract, after it had gone to substantial expense in its partial performance, he placed plaintiff in a predicament, and conferred upon it, as a result, the right of choice between two methods of escape. Plaintiff might have insisted upon the continued existence of the contract, and upon being permitted to perform it, and have recovered its damages for breach thereof; or, recognizing the impossibility of carrying out the contract by reason of defendant’s wrongful act, it was at liberty to treat such act as a declaration on defendant’s part of rescission, and to meet the
By the Court. — Judgment affirmed.