Muth v. Frost

68 Wis. 425 | Wis. | 1887

LyoN, J.

1. The testimony is conclusive that the safe and proper mode of fastening down and securing the tin covering of a roof like that in question is to place cleats upon it, as near as possible to the standing seams, and nail the same to the roof-boards. These cleats should be two inches wide, should be placed at intervals of not more than twelve to fourteen inches, and each should be nailed with two nails. There is no appliance other than the cleats to hold the tin roofing in place. The testimony is also conclusive that the tin put by plaintiff upon the defendant’s roof was not secured in that manner; but that in some places the cleats were placed some twenty-eight inches apart, and even a greater distance, and that many of them were fastened with but one nail. That these defects in construction were elements of weakness and rendered the tin roofing more liable to be carried away in a high wind than it would have been were it properly put on, is unquestionable. It is quite immaterial that very many of the cleats, perhaps a majority of them, were placed the proper distance from each other and properly nailed to the roof-boards. As the weakest link in a chain is the true measure of the strength of the chain, so "the defective portions of this roof give the true measure of the sufficiency of the whole roof. It does not require an expert to know that, if the tin is so defectively fastened to the roof boards in' any place that the wind can get a purchasp under it and raise it, the whole roofing is thereby endangered, and may be swept away, although other portions of it are properly constructed.

Some attempt was made to show that openings were left in the building through which the wind entered and lifted the tin. But it is undisputed that the roof-boards were seven-eighths of axf inch thick, planed on both sides, and matched closely together. It does not appear that there were any holes left in it. Of course, there was no chance for the wind to get any considerable purchase under the tin roofing through the roof-boards, and it is manifest that had the tin been properly laid it would have suffered no injury. Moreover, there is a strong preponderance of evidence tending to show that no openings were left in the building.

By assessing the plaintiff’s damages at the full amount of his claim, the jury must have found that the tin roofing was properly laid in the first instance. Under the evidence contained in this record, the question whether the roofing was properly laid should not have been submitted to the jury. The verdict in that behalf is not sustained by the proofs, and for that reason a new trial should have been ordered.

2. After the roofing was blown off, the defendant’s agent took some part in the attempt to repair the roof. It is claimed that the leaky condition of the roof after such repairs were made, resulted from th¿ acts' of such agent, and that the plaintiff is not chargeable therewith. If the roof would have been sufficient after it was repaired by the plaintiff but for the acts of such agent, the plaintiff is entitled to recover the original contract price therefor, but not for the repairs. This is so because he failed to perform his contract in the first instance and because of such default the 'repairs were made necessary to a full performance of his contract. If another trial should develop the fact that the roofing was properly laid by the plaintiff in the first instance, then he should recover the contract price therefor, and, in addition thereto, the value of his labor and materials in making the repairs, subject to deduction for any failure to make such repairs in a proper and workmanlike manner.

3. If the roof was worthless because of the default of plaintiff in the performance of his contract, and the materials furnished by defendant therefor became thereby of no value or less value, the defendant should be allowed the amount of his loss in that behalf. But we do not perceive how defendant can properly be allowed for damage to machinery caused by the leaky .condition of the roof. The leakage developed from the first, and it was his own folly if he placed machinery where it would be injured thereby.

By the Gourt.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.