Pritzlaff Hardware Co. v. Berghoefer
103 Wis. 359
Wis.
1899
Check Treatment
Dodge, J.

After thorough examinations of the evidence, we do not find any clear preponderance thereof against the findings made by the referee and confirmed by the court. True, upon many questions there is a sharp conflict of evidence or opinions; but from. such conflict it is essentially the province of the trial court to extract the facts, and, as we have so often said, this court will not disturb the conclusions reached thereon, except when the preponderance of the evidence has very clearly been disregarded. No adequate benefit can result from preserving in an opinion a discussion of evidence, the conclusions of the trial court on which are concurred with by us; and we proceed to a consideration of the law of the case, as applied to the facts presented by the findings.

The contract here under consideration bound the principal defendants not only to construct the hoisting apparatus according to its specifications, but also to the satisfaction and acceptance of Hadfield, who, the court finds, has at all times been dissatisfied, and has refused to accept. The evidence, though in conflict, does not clearly preponderate *364against that finding, which therefore is a verity in this case. This court, in a line of decisions from Baasen v. Baehr, 7 Wis. 516, through Hudson v. McCartney, 33 Wis. 331; Wendt v. Vogel, 87 Wis. 462; Pormann v. Walsh, 97 Wis. 356, to Burnham v. Milwaukee, 100 Wis. 55, and Coorsen v. Ziehl, post, p. 381, has consistently held that such agreements are entirely competent for the parties to make, and will be fully enforced according to their terms, as conditions precedent to recovery, unless dispensed with by the parties themselves, or unless the acts of the nominated referee are collusive, fraudulent, arbitrary, and unreasonable, or due to clear mistake of the facts on which his judgment is predicated. Nothing of the sort is shown here. The utmost that defendants’ testimony tends to show is that the result is a fairly substantial performance of the contract, and perhaps ought to satisfy Hadfield,— though the findings even as to that are adverse. That conclusion, even if established, would not suffice. The question is, Has the arbitrator honestly reached an adverse conclusion? not, Would the court do so upon the evidence ? Exceptional cases have presented themselves wherein the above-stated rule has not controlled the rights of the parties, as in Laycock v. Moon, 97 Wis. 59, where it was held that the right of disapproval must be exercised promptly while the work was in progress, so that the materials or the manner of construction might be changed to meet the architect’s views. That was a case, however, where the work was to be done under the eye and subject to the direction of the architect; and the defects of material and construction were of kinds as to which the architect had assumed to direct in the specifications, and to have full knowledge, such as the brick and mortar used in the walls, and the manner of laying them up. The contract before us presents a very different situation. This is a contract for results, as to which the details and manner of construction are comparatively unimportant, and are especially within the knowl*365edge of the contractor, who assumes expert understanding as to how those results can best be accomplished. It does not appear that either Hadfield or any of defendant’s officers had knowledge of what would accomplish or defeat the efficacy of the plant and machinery, as a twenty-ton hoisting plant suitably adapted to the situation. They must rely on the contractor, and measure his conduct by the whole plant, when, completed, they attempted to use it.

Neither can the parties here be brought within the doctrine of another class of cases, where, although the contractor had not complied strictly with all the requirements, he had substantially completed the structure contracted for, and the owner had taken possession of the same and put it to the uses intended, thereby- accepting the benefits of the contractor’s work. There the contractor has often been allowed to recover on the basis of qucmtum meruit or quan~ turn valebat. In the case at bar, however, there is, according to the findings, no substantial completion. The building and apparatus are inadequate and unfit for the purpose intended, not alone in details which might be remedied, but in general construction and working. In addition, the owner has not gone into possession or enjoyed any benefit' of it. The device stands unused upon its premises, not only without benefit to it, but doubtless cumbering the ground.

The defendants, not having shown completion of their contract according to its terms, nor any excuse therefrom, are' subject to the rule of law above stated, and have no right of recovery against the garnishee. The plaintiff can have no greater rights, and the judgment dismissing the garnishee was correct.

The motion for a new trial was made after judgment. It cannot, therefore, be considered upon an appeal from the judgment, which is all we have before us. Morris v. Niles, 67 Wis. 341; Reed v. Madison, 85 Wis. 667, 673.

By the Court.— Judgment affirmed.