161 Wis. 280 | Wis. | 1915
The following opinion was filed June 1, 1915:
This case presents but few questions of law and those of slight importance. Findings of fact made by the trial court and challenged by the appellants aggregate nearly 100. The labor of checking up each finding to see if it is supported by credible evidence has been considerable.
In the main the judgment is challenged because the court found a substantial performance of the different contracts; because it found as extras items claimed to be included under the contracts; because it allowed for extras not ordered pursuant to the terms of the contracts; because extras were allowed for at more than their reasonable value; and because it refused to allow damages for alleged failures to perform according to contracts. Appellants also claim that the architect, Bruns, who is a lien claimant, acted in collusion with the other claimants and so rendered it difficult for them to prove their defenses and counterclaims. That the case was thoroughly tried by the parties and carefully considered by the trial court is evident from the findings made by it, which for the seven claimants cover nearly fifty printed pages, and also from the fact that it carefully viewed the building after the evidence was taken.
No advantage would accrue to the legal profession from a discussion of claims as to which the findings of fact are affirmed on the ground of sufficient evidence to sustain them and which involve no questions of law. Over ninety per cent, of the case relates to such findings, and as to them the parties will have to rest content with our assurance that all have been carefully examined and have been found to possess such support in the evidence that they cannot be set aside as being contrary to the clear preponderance thereof. They must therefore stand as the facts in the case. Keilly v. Severson, 149 Wis. 251, 135 N. W. 875. The practice of not discussing issues resting upon findings of fact that are sustained on appeal has often been followed by the court in the past. See Hay v. Randles, 152 Wis. 632, 140 N. W. 333; First S. & T. Co. v. Milwaukee Co. 158 Wis. 207, 242, 148 N. W. 22, 1093. That it will be indulged in more frequently in future is evident
The Sterling Engineering Company contracted to do the concrete work on the building according to plans and specifications submitted to it. Such plans showed no stairway marked “concrete” to the basement nor stairs so marked from the second story either in the rear or center part of the building. There was evidence to the effect that Berg was undecided as to what material should be used for such stairways at the time the contract was let and that he afterwards ordered them made of concrete. The contractor was not called upon to furnish more concrete construction under his contract than the plans and specifications could be reasonably construed to call for. Concrete stairs are not so customary and usual that where some, are marked “concrete” on a plan it will be inferred that all are to be of such material — especially where, as here, the evidence shows that the owner was undecided whether to construct them of iron or of concrete at the time the contract was let. Of course a situation might well arise where the marking of one or more stairways as concrete might be held to include other unmarked ones. But such is not the case here. The trial court properly allowed for the concrete stairs mentioned as extras.
The carpenter contract provided in one place that “All nailing in interior finish shall be done with finishing nails and as far as possible concealed from sight,” and in another place, “All nailing to be blind nailed in the best workmanlike manner.” Appellants claim and their evidence shows that
The court’s finding that the architect acted in good faith throughout is supported by the evidence. It is claimed, however, that even if he did, the court allowed him too much. He entered into a written contract to prepare plans and specifications and superintend the construction of a three-story building for one per cent, of the cost thereof. Eor this he was allowed $439.16. After he had prepared plans and specifications for a three-story building the owner changed his mind and wanted a four-story building. He requested the architect to prepare plans and specifications for such a building, which he did, and he superintended the construction of a part of the fourth story also — but not all of it. Uothing was said as to his compensation for the work on the fourth story. The appellants claim he should receive but one per cent, for it, namely, the same as the compensation mentioned in the written contract for the three-story building, while the architect claims he is entitled to recover the reasonable value of the extra services shown by the evidence, namely, two per cent, for preparing plans and specifications for the fourth story and three per cent, for superintending the construction thereof, so far as it was completed when he severed his connection with the work. The court allowed him the reasonable value of the extra services, which amounted to
The claim that Philip Matt and P. J. Matt are not parties to the suit is not supported by the record. They were made parties to the suit of Nelson against appellants, but in drawing the order consolidating the different suits they were inadvertently omitted. Afterwards by an order nunc pro tunc they were made parties, replied to the counterclaim by a general denial, and evidence as to their claim came in without objection that they were not parties to the suit. The court had power to correct the order of consolidation by an order nunc pro tunc, and properly did so.
The Matts owed August C. Beck & Son, a subcontractor, the sum of $398.44. With the consent of Berg they drew an order upon him for that amount in favor of August 0. Beck & Son. Berg refused to pay it, and it was put into a judgment amounting with costs to $511.25, which he has since paid. He claims a credit against the Matts of the amount of the judgment. They say the credit should be the amount of the order. At the time the order was given the court found that there was due on contract and extras an amount in excess of the order. The evidence sustains such finding. The court properly allowed Berg a credit for the amount of the order only.
Many exceptions were taken to findings allowing for extras on the ground that they had not been ordered in writing as the contracts provided. The evidence shows that they had either been ordered orally by Mr. Berg, the owner, or they had been put in as extras with his knowledge and consent. In either case the extras were properly allowed. An oral request made by one party to a written building contract and
The clerk taxed costs in favor of the seven lien claimants to the amount of $501.88, of which $258.88 was in favor of the Sterling Engineering Company and $69 of the latter amount was for twenty-three days’ attendance upon court during trial. Appellants say the findings are too long and are needlessly duplicated. We think they are not properly subject to such criticism, nor are the costs taxed so large as to warrant this court in reducing them under the rule of Krueger v. Buel, 153 Wis. 583, 142 N. W. 264.
The appellants took no appeal from the clerk’s taxation of costs. This they should have done if they were dissatisfied with it, and then, upon exceptions to the order of the trial court retaxing costs, this court could review it. McHugh v. C. & N. W. R. Co. 41 Wis. 79; Rollins v. Kahn, 66 Wis. 658, 29 N. W. 640; Pormann v. Frede, 72 Wis. 226, 39 N. W. 385. The case of Allis v. Meadow Spring D. Co. 67 Wis. 16, 29 N. W. 543, 30 N. W. 300, cited by appellants, was a retaxation of costs in this court and is not applicable. Neither does sec. 2919, Stats. 1913, govern a case of this kind.
The only bill of costs returned with the record is that of the Sterling Engineering Company, and the court, if it could review the taxation of costs, would find itself in the predicament of appellants’ counsel where they say in their brief, “If we were in a position to know or learn what costs the court allowed to each of the lien claimants we would be in a position
As to a great many items tbe evidence was sharply conflicting and would bave supported findings different from those made. But,- as before stated, tbe evidence was carefully considered by tbe trial court, and in addition to tbe usual advantages which it has in determining tbe truth upon conflicting evidence it also viewed tbe premises after all tbe evidence was taken. This enabled it more correctly to apply tbe evidence and determine tbe probative force of tbe testimony of tbe different witnesses. Failing to find a clear preponderance of the evidence against any finding made or any error in applying tbe law to them, it results that tbe judgment must be affirmed.
By the Gourt. — Judgment affirmed.
A motion by tbe appellants for a rehearing was denied, with $25 costs, on October 5, 1915.
