54 Wis. 242 | Wis. | 1882
The material questions to be determined" upon this appeal are — first, whether, under the contract, in the absence of any proof of fraud, mistake or unfair dealing on the
Upon the second point, we are all of the opinion that the matters set out in the answer were sufficient to authorize the defendant to show there had been either fraud, collusion or bad faith on the part of the architect in accepting the work; and that if he had been able to establish by his evidence the facts set out in his answer, such evidence would have tended to establish at least bad faith on the part of the architect, and so would have avoided the conclusive effect of his acceptance of thé work. If the defendant could have shown by his evidence that the plaintiff put rotten materials in the floors and roof of
In the case of Hudson v. McCartney, 33 Wis., 331, the late Chief Justice Dixon says: “Neither do we think the case was one where the jury should have been permitted to go into evidence of the manner in which the work was executed, for the purpose of impeaching the decision of the superintendent;” but, he adds, “if fraud in the arbiter can ever be established by proof that he refused to certify the execution of the work when the same had been duly and properly performed, it can only be in those cases where the refusal is shown to have been grossly and palpably perverse, oppressive and unjust — so much so that the inference of bad faith and dishonesty would at once arise when the facts are known.” The evidence offered by the defendant in this case, if given, would have tended to prove such a state of facts as would, at least, have justified an inference of bad faith on the part of the architect in accepting the work. Knowingly accepting unáound and rotten materials, where the contract called for sound materials, would certainly tend to prove bad faith; and if the evidence had shown that he had permitted large quantities of such material to be used, when the contract called for sound and perfect materials, it would be almost conclusive evidence of that fact. Proof that a few pieces of imperfect material had been used, or that in some slight matters the workmanship had not been in strict accordance with the terms of the contract and specifications, would not be sufficient to avoid the acceptance of the work by the architect, nor establish bad faith on his part; but it seems
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.