166 Wis. 547 | Wis. | 1918
The following opinion was filed November 13, 1911:
Did the trial court commit error in construing the contract and the first question of the special verdict? That is the vital matter to be considered. We incline to the view that it did not, and shall only briefly discuss the subject. There is really very little which can be helpfully said about it. Evidently from the trial court’s opinion, after verdict, and its instructions, it regarded the question, at the outset, the same as when it made the order complained of.
The bank purposed securing delivery of the marble for the structure so the entire work could be completed not later than the 1st day of December, 1911, if the progress of the work at the building demanded it. It is considered that the words “progress of the work at the building” refer to the particular work which was the subject of the contract, i. e. the marble work. It is hardly reasonable to suppose that it was left for
The work of setting the marble was an important part of the work at the building, so, in any view of the matter, whenever the mason contractors were ready to use marble, the progress of the work at the building demanded it, and failure to have marble at hand for such use was a breach of the.very letter of the agreement. In the clause “the contractor agrees to pay the owner ten dollars ($10) per 'day for each and every day the work remains unfinished after the day set for its completion,” “work” is synonymous with the same word in the preceding paragraph, including its use in the clause “if the progress of the work at the building demands it.” The day specified for completion of the job clearly refers to the marble feature subject to the demands of the progress thereof.
The bank was under obligation to provide the marble for use by the mason contractors. But it was agreed in the contract that the bank should provide all labor and material essential to the conduct of the work, not included in the contract, but that' it should be deemed to have satisfied such agreement by entering into contracts, in substantially the form of the mason contract, with other contractors selected by it, for the furnishing of such labor and material, so as to be exempt from any liability for any fault or neglect of any such contractors or for any omission or delay whatever not caused by its personal act. So it was evidently deemed by the bank essential that under such provision it should contract for the marble to be delivered at the building as fast as the mason contractors were ready therefor, regardless of
We have examined, with care, the briefs of counsel, but do not think best to greatly extend this opinion, as would be required to review in detail the suggestions therein. None of them have escaped our notice, nor have been passed over without due attention.
As indicated, our conclusion is that the trial court correctly construed the marble contract and that the jury misunderstood the first question resulting in a verdict which is wholly unsupported by the evidence, since, as we read the pleadings and evidence, it conclusively appears that marble was not always furnished as the mason contractors were ready to use the same; that there was such delay that the subcontractor, having the work of setting the marble, was at times entirely out of material when the progress of the work required it. The verdict was contrary to law as well as contrary to the evidence, so it was properly set aside as a matter of right and not in the court’s discretion.
The verdict left unsolved the question of whether the fault of appellant delayed the mason contractors beyond May 1, 1912, in completing their contract, in respect to which there was a conflict in the evidence. So, notwithstanding it is very unfortunate that a new trial must be had, as the trial court
By the Oourt.- — The order is affirmed.
A motion for a rehearing was denied, with $25 costs, on February 5, 1918.