120 Wis. 288 | Wis. | 1904
The plaintiffs claim that the case was improperly taken from the jury. This seems to be based upon the theory that their contract made with the defendant through Findorff was separate from, independent of, and without reference to the plans, specifications, and contract which the defendant had previously made with the owners of the Kappa House in respect to the plastering. If the evidence on the part of the plaintiffs sustains such theory, then the verdict was improperly directed. The evidence is undisputed, and to the effect that March 11, 1901, the defendant entered into a written contract, including plans and specifications, with the owners of the Kappa House, to erect, construct, and complete the same on or before September 1, 1901, according to such plans and specifications, for $11,441; that, prior to that "time, Porter — named therein as local superintendent — notified different contractors in Madison, including the plaintiffs and the defendant, in' writing, that •such plans and specifications were at his 'office, and invited such contractors, respectively, to examine the same and send him sealed bids for the different parts of the work; that the plaintiffs, pursuant to such notice,, carefully examined such plans and specifications, which were identified by them in evidence, and thereafter sent to Porter their bid for the plastering work; that the defendant sent in a separate bid for the mason work, and also a separate bid for the whole work, and the defendant’s bid for the whole work was accepted, and accordingly the defendant made the contract with the owners March 11, 1901, as stated; that subsequently the defendant sent the plans and specifications to the plaintiffs to give him
The contention that the contract between the plaintiffs and the defendant was made without reference to such specifications and contract previously made between the defendant- and the owners of the Kappa House is without foundation. The interviews between Eindorff and one of the plaintiffs, which resulted in the making of the contract, were without significance or meaning, except when considered with reference to the prior contract and specifications. They say they told Eindorff what the plaintiffs’ “bid would be for the job.” What job was thus referred to ? Certainly the job the plaintiffs had previously looked over “to determine what” their “bid would be for that job.” That manifestly occurred about a week before the conversation with Eindorff, and after the defendant had sent the plans and specifications to the plaintiffs for the purpose of having them give him a bid on the job. At that time they saj they figured and returned the plans- and specifications, which figures the defendant rejected at the Fair Store when the defendant informed the plaintiffs-that they would not get the job at such figures. It is manifest that the job thus referred to meant the job of lathing and plastering which the defendant had agreed to perform for the owners of the Kappa House. He was bound to perform, or get some one else to perform, that job in accordance with such plans, specifications, and contract. If the work should
The views expressed make it unnecessary to determine whether it was error for the trial court to hold, as a matter of law, that the plaintiffs were hound to know of the existence of a custom in the city thaf subcontractors took their contracts subject to the terms and conditions of the contract between the owners and the principal contractor, notwithstanding the evidence tended to prove that the plaintiffs had no knowledge of the existence of such custom. In addition to cases cited by counsel, see Ohaieaugay 0. & I. Go.v. Blalce, 144 U. S. 476, 12 Sup. Ct. 731. The trial court, however, properly held that, regardless of such custom, the plaintiffs were, as a matter of fact, hound by the terms and conditions of such original contract, and were only entitled to payment upon doing so.
By the Gourt. — The judgment of the circuit court is affirmed.