Rankl v. Schmidt

133 Wis. 103 | Wis. | 1907

Maeshajll, J.

The case does not present any intricate question of fact, nor any disputed questions of law on what we regard to be the single vital point.

It is conceded that full or substantial performance of the' contract on respondent’s part was a condition precedent to his having a right to recover thereon. It is conceded that whether there was such performance was not a judicial question, in the absence of satisfactory proof that the superintending architects either unjustly refused to perform the part assigned to them under the contract, or that they performed and their conduct in the matter was tainted with fraud or mistake. It is further conceded that such supervisory architects were, by agreement, given supreme authority to pass upon any controversy between the parties to the agreement, as to performance by respondent, and that their decision, if rendered as the agreement contemplated, bound both parties in the absence of fraud or mistake. There was no claim of fraud or mistake on the part of the architects rendering their decision, if they made one, open to impeachment. There is a controversy as to whether under the contract a final certificate by the superintending architects, evidencing their decision in favor of respondent as to full performance, was a condition precedent as to his having a right to recover on the contract, but we do not reach that subject before coming to a conclusion disposing of the appeal. There is a controversy as to whether the contract was in fact performed to the satisfaction of the superintending architects, and a further controversy as to whether they unjustly refused to give the respondent a final certificate of satisfaction with the work. Both, as indicated in the statement, were decided in respondent’s favor. Both findings are challenged as against the clear preponderance of the evidence.

The main arguments in the case on both sides are in respect to the contentions above indicated. They present a question of' the character often met with as to whether the trial court properly weighed the evidence. That is one of the most difficult questions which a superior jurisdiction has to deal with as regards overruling a decision of the trial court, where it has the opportunity to meet witnesses face to face and has other advantages over the court which only has the benefit of a printed history of the trial. We have enlarged upon this subject too many times and too fully to leave anything more which can be helpfully said.

A clear preponderance of evidence against a trial court’s finding, when such evidence must outweigh that which is in favor of such finding and all the advantages of the trial court which we have referred to, must necessarily be a preponderance so decided as to leave but little room for reasonable doubt on the question.

Following the usual custom in cases of an affirmance of a decision on a controverted question of fact, we shall not discuss the evidence and incorporate it in this opinion. Suffice it to say, all the evidence in the record bearing on the controversy in question has been read and weighed with all the care we can devote thereto, resulting in a conclusion that there is not that clear preponderance thereof against the trial court’s decision warranting a reversal thereof. Hence the judgment must be affirmed.

By the Court. — The judgment of the circuit court is affirmed.