43 Wis. 381 | Wis. | 1877
After issue in this cause had been sent down for trial, the attorney general procured the return of the record by stipulation; and moves for leave to file seven amended answers, three of them in the way of counter claim.
The original answer admits the contract set up in the com
The first amended answer again admits the contract, but denies the plaintiff’s performance of it. This is covered by the general denial, and is unnecessary. It admits the discharge of the plaintiff by the building commissioners, but traverses the reasons for it assigned in the complaint. It was held on the demurrer that the commissioners always had absolute right to discharge the plaintiff, with or without reason. The reason is therefore immaterial, and on that ground an averment of it was stricken out of the original answer. And so all the averments of the first amended answer are immaterial or redundant.
The second amended answer pleads only the plaintiff’s discharge and the reasons for it, and is immaterial.
The third amended answer pleads generally payment of the plaintiff for all services up to the time of his discharge, and specially that he was paid five per cent, on the cost of the entire building except the south wing. These averments do not appear quite consistent, in view of the judgment on the demurrer, that the plaintiff, if entitled to recover, would be entitled to quantum valebat for his plan of the south wing, in addition to five per cent, on the cost of the building of which he superintended the construction. It is difficult to say whether or not the averment is intended to cover the plans of the entire building. If not, it still appears uncertain and evasive. The complaint pleads the cost of the building superintended by the plaintiff, and admits payments of less than five per cent, on the amount. A plea of payment, in excess of the payment admitted in the complaint, would be good. Martin v. Pugh, 23 Was., 184. An answer of payment, partial or total, should plead the amount paid; and especially in a case like this, where the amount payable is dependent on another amount also
Put this answer is not confined to payment. It proceeds, in not very apparent connection, to aver that the plaintiff did not superintend the construction of the south wing, which is admitted in the complaint; that he did not furnish working drawings or specifications, but only a general plan of the south wing, an averment unnecessary with the general denial; that the general plan of the south wing was a duplicate of the general plan of the north wing, and became the property of the state in 1870, manifestly immaterial; that the building constructed on the plaintiff’s plan was not as represented by the •plaintiff, and did not answer the purpose for which it was constructed ; and that therefore the plaintiff’s, general plan for .the south wing was worthless, and only partially used. So far as these averments bear on the quantum valebat of the plan of the south wing, that is, on the amount of the plaintiff’s damages, they are, of course, unnecessary. So far as they bear on the plaintiff’s responsibility for his plans, their materiality will be more conveniently considered later. It is sufficient to say here that the third amended answer properly raises no material issue.
The fourth amended answer denies that the state has ever refused to pay the plaintiff his just claim, if any. The complaint avers, and the original answer admits, the presentation of the plaintiff’s claim to the legislature and the refusal of that body to allow it. This answer does not imply a traverse of
The fifth amended answer is by way of counter claim. It states at the outset that by the plaintiff’s contract he agreed to furnish to the hoard of building commissioners correct and accurate estimates of materials put in the building by the contractors. This was probably intended as a construction of the superintendent’s duty under see. 9, ch. 39 of 1870, and is not a correct one. The pleading then avers that the plaintiff’s specifications required a certain number of feet of iron coil to he placed in the north wing of the building; that the plaintiff negligently certified to the building commissioners that the required quantity of coil had been put in, and that the commissioners, relying on his certificate, paid for it; that in fact a less quantity of coil had been put in; that it was the plaintiff’s duty under his contract to know the quantity actually put in; that the commissioners did not and could not then know the fact; and that it came to their knowledge after the plaintiff’s discharge.
Probably the building commissioners might have required the plaintiff, upon completion of the building, to inspect all its details, and to report to them whether or not they complied with the contract. In that case, however, there is nothing in the statute to warrant the commissioners to accept the super
But here is no averment that the commissioners imposed any duty upon the plaintiff, to aid them in. their action upon the completion of the building. Though the answer is very
The sixth and seventh amended answers are also by way of counter claim. They appear to rest upon an entire misconstruction of the plaintiff’s contract with the building commissioners, and an entire misconception of his duties under it.
The plaintiff made his contract as an architect; and should therefore be held at least to reasonable skill in his calling, both in planning the building and in superintending its construction. It may perhaps be doubted if he should be held
By the Court. — The motion to amend is overruled.