Hammersberg v. Nelson
| Decision Date | 06 April 1937 |
| Citation | 224 Wis. 403,272 N.W. 366 |
| Parties | HAMMERSBERG v. NELSON et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for La Crosse County; Robert S. Cowie, Judge.
Modified and affirmed.
This action was commenced on March 6, 1936, by the plaintiff, Chester M. Hammersberg, a plumbing contractor, against the defendants, Mary J. Nelson and Minnie Carter, owner of a dwelling house and mortgagee respectively, for the purpose of foreclosing a claim for mechanic's lien. The plaintiff's claim for lien was based on the reasonable value of certain work, labor, and materials furnished to the defendant Nelson. The latter answered and asserted that the plaintiff's work was covered by contract; that the plaintiff was entitled to certain extras but that he had overcharged her for the same; that he had negligently failed promptly to install certain gate valves as a result of which she had suffered great damage; that the plaintiff was indebted to her on a separate account in the sum of $80.46; that she was not indebted to the plaintiff, but that he was indebted to her in the sum of $180.59, for which she demanded judgment against him. Trial was had to the court. The court found that the work was covered by contract; that certain extras were furnished and the reasonable value thereof; that the plaintiff was indebted to the defendant on open account; that there was due to the plaintiff the sum of $18.50 and that a mortgage given by the defendant Nelson to the defendant Carter was subordinate and secondary to the plaintiff's claim for lien. From a judgment entered August 21, 1936, based upon the findings, the plaintiff appealed. The facts will be stated in the opinion.Higbee & Higbee, of La Crosse (Robert D. Johns, of La Crosse, of counsel), for appellant.
George H. Gordon, Law & Brody, of La Crosse, for respondents.
Early in the summer of 1934, the defendant, Mary J. Nelson, hereafter called the defendant, was desirous of remodeling a certain dwelling house belonging to her. She requested the plaintiff to submit a proposal for the plumbing work and equipment. Several conferences were had with the plaintiff at which the defendant outlined what she desired. On July 21, 1934, the plaintiff submitted a written proposal by which he offered to furnish and install the desired materials and fixtures for the sum of $790. The defendant did not immediately accept the plaintiff's bid, either orally or in writing. The defendant apparently was not ready at that time to proceed with the work of remodeling. The defendant retained the proposal but apparently said nothing to the plaintiff about the work or plaintiff's proposal until in February, 1935. At that time the plaintiff talked to the defendant as to when he might begin the work and in March, 1935, he commenced to work on the defendant's job. The plaintiff, apparently, was willing to proceed with the work. He did not refer to his proposal made to the defendant in July, 1934, or tell her that it was withdrawn or object to her delay in proceeding with the work. He simply went ahead with the work, well knowing that the defendant's plans had been materially changed, particularly with respect to the kind and number of the plumbing fixtures. The plaintiff acquiesced in such changes and furnished a number of plumbing fixtures not listed in his proposal, without any understanding or agreement as to the price of such fixtures or the cost of installing them. When the work was completed the plaintiff rendered a bill to the defendant based upon the reasonable value of the labor, materials, and fixtures furnished. The defendant refused to settle on that basis and this action was thereafter commenced. On two different nights while the work was in progress, but when the plaintiff was not on the job, flood waters backed up into the defendant's basement, causing considerable damage to her furniture and furnishings there stored. The defendant asserted that the failure of the plaintiff promptly to install two certain gate valves in the basement, as requested, was the cause of her damage.
Upon the trial the plaintiff took the position that his proposal was never accepted by the defendant and that his proposal never ripened into a contract. The defendant, on the other hand, took the position that when she told the plaintiff to go ahead with the work she thereby accepted his proposal. She conceded that a number of extras were furnished. Much of the testimony adduced related to the asserted liability of the plaintiff for damages suffered by the defendant as a result of the water backing up into her basement. Upon...
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...A builder can recover from the owner for the reasonable value of extras furnished at the owner's request. Hammersberg v. Nelson (1937), 224 Wis. 403, 407, 272 N.W. 366. That principle is applicable when the original contract has been followed, and when there have been additions or substitut......
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