Am. Foundry & Furnace Co. v. Bd. of Educ. of City of Berlin

• Decision Date: 29 January 1907
• Citation: 110 N.W. 403,131 Wis. 220
• Parties: AMERICAN FOUNDRY & FURNACE CO. v. BOARD OF EDUCATION OF CITY OF BERLIN ET AL.
• Court: Wisconsin Supreme Court

131 Wis. 220

110 N.W. 403

AMERICAN FOUNDRY & FURNACE CO.

v.BOARD OF EDUCATION OF CITY OF BERLIN ET AL.^a1

Supreme Court of Wisconsin.

Jan. 29, 1907.

Appeal from Circuit Court, Waushara County; Chas. M. Webb, Judge.

Action by American Foundry & Furnace Company against board of education of the city of Berlin and another. From a judgment for defendants, plaintiff appeals. Affirmed.

This is an action to recover the balance due upon contract. It appears fom the record, and is undisputed, that August 16, 1901, the defendants, being about to construct a new high school building in the city of Berlin, entered into a written contract with the plaintiff wherein and whereby the plaintiff agreed “to furnish and set in position in a neat and workmanlike manner ready for use in the building referred to * * * the Improved Smead Heating and Ventilating Apparatus as therein described and to furnish a superintendent to superintend the setting of the apparatus and to give all instructions necessary for the proper introduction of the Smead system of ventilation and furnish plans and specifications showing the proper construction of said building for warming and ventilating with said apparatus, without charge,” and “to furnish all necessary registers, register frames, register faces, ventilating iron base and valve regulators required in the execution of this contract. Apparatus is guarantied to burn soft coal or wood and is to be set as per plans furnished by” plaintiff “together with all necessary connections and all work shall be done in a thoroughly neat and workmanlike manner to the satisfaction of” the defendants. It was also understood and agreed therein that said apparatus should be set and all work done by plaintiff promptly and without delay to the defendants or other contractors on the building, and that the apparatus might be set at any time between the laying of the foundation walls and the completion of the building. The plaintiff therein and thereby guarantied “that said apparatus shall with good care warm the rooms of said building, in accordance with plans submitted and made a part of this contract, to an average temperature of 70° Fahrenheit during the coldest weather and at the same time secure good ventilation in all the rooms warmed.” The plaintiff “will also furnish registers for corridors but does not guarantee warming of corridors to 70°, provided corridors are more than one story high. Provided the said apparatus does not fulfill the above guaranty,” the plaintiff, “upon being notified of the fact, agrees either to make it do so at their own expense by furnishing additional apparatus, or by making such changes and alterations as may be necessary, or to refund all money paid them and remove the apparatus from the building.” The defendants agreed “to follow the plans, specifications and instructions given by” the plaintiff “concerning construction of said building for warming and ventilation and for using the apparatus--a copy of instructions will be furnished wih the apparatus--do all mason and carpenter work and furnish all material for the same necessary to properly set the said heating apparatus, and pay the” plaintiff $3,500 as follows: $1,000 when the furnaces are delivered at high school building, $1,800 when furnaces are set in position in the basement, and $700 April 1, 1903. A note or school order was to be given to the plaintiff for the last-named amount when the furnaces were set in position in basement, and all payments were to be subject to draft when the same should become due, and all sums to draw interest at 6 per cent. after due until paid. The plaintiff was not to be held responsible for delays caused by other contractors on the building, and no verbal contracts were to be binding. It is conceded that, when the furnaces were delivered at the high school building, the defendants paid to the plaintiff the $1,000 called for by the contract, and that, when the furnaces were set in position in the basement, the defendants paid to the plaintiff the $1,800 called for in the contract. It is also conceded that the high school building was completed on or about September 20, 1902, and about the same time the public school for the year was commenced. The defendants declined to pay the $700 which by the terms of the contract became due and payable April 1, 1903, on the ground that the apparatus had failed to heat the building as required by the contract. The plaintiff continued to try and make the apparatus work according to the contract during the school year of 1903-04. Early in May, 1904, the defendants notified the plaintiff that the heating and ventilating plant was not satisfactory, and failed to fulfill the contract. Thereupon the plaintiff notified the defendants that it claimed that the plant would warm the building in all kinds of weather as agreed in the contract. The defendants then notified the plaintiff that they would withhold payment by reason of the plaintiff's failure to perform the contract, and thereupon the defendants requested the plaintiff to take the apparatus out of the building and pay back the money which had been so advanced.

July 13, 1904, the plaintiff filed its claim for the $700 with the defendants, and July 19, 1904, same was disallowed by the defendants. September 22, 1904, the plaintiff appealed from such disallowance to the circuit court. January 9, 1905, the plaintiff served its verified complaint to recover said balance of $700, less $55 to be deducted by reason of certain changes in the apparatus, and demanded judgment for $645, with interest thereon at 6 per cent. from April 1, 1903. The defendants answered by way of admissions, denials, and counter allegations, to the effect that the defendants, relying upon the warranties, guaranties, and promises contained in the contract, had paid the $2,800, and that the defendants had notified plaintiff of such failures to make the apparatus heat the building as required by the contract; and also by way of counterclaim alleged similar facts, and the expense and damages sustained by the defendants by reason of such failure of the plaintiff to perform such contract, and demand that the complaint be dismissed on the merits, and that the defendants recover back said $2,800 and interest and certain damages and interest. The plaintiff demurred to the counterclaim, and the same was overruled by the court. Thereupon the plaintiff replied and put in issue the respective counterclaims. At the close of the trial the jury returned a verdict to the effect that they found for the defendants that the plaintiff had no cause of action, and they further found for the defendants on their counterclaims, and assessed their damages at $2,800 and interest thereon from June 23, 1904, and for the further sum of $75 and interest thereon from September 1, 1905, amounting in all to $3,088.57.

From the judgment entered thereon for the amount stated, with costs taxed at $511.88, the plaintiff brings this appeal.

McElroy, Eschweiler & Wetzler, for appellant.

George B. Heaney (John J. Wood and B. R. Goggins, of counsel), for respondents.

CASSODAY, C. J. (after stating the facts).

Errors are assigned because the court refused to direct a verdict in favor of the plaintiff, and refused to set aside the verdict and grant a new trial, and ordered judgment on the verdict in favor of the defendants and against the plaintiff. In other words, the claim is that the verdict is not sustained by the evidence. The substance of the contract is given in the foregoing statement. By the terms of that contract the plaintiff agreed that, with good care, the apparatus would warm the rooms of the building to an average temperature of 70° during the coldest weather, and at the same time secure good ventilation in all the rooms warmed, and that, if the apparatus did not fill the above guaranty, the plaintiff, “upon being notified of the fact,” would “either make it do so” at its own expense or “refund all money paid” to the plaintiff “and remove the apparatus from the building.” The finding of the jury is to the effect that the apparatus did not fulfill such guaranty, and that the plaintiff, upon being notified of the fact, failed to make it do so, or to refund the money which had been paid and remove the apparatus from the building. Whether such finding is sustained by the evidence is the important question in the case upon the merits.

Undoubtedly the plaintiff, “upon being notified of the fact” that the apparatus did not fill the above guaranty, had the option either to make it do so “or to refund all money paid” and “remove the apparatus from the building.” The contract does not name a specific time within which the plaintiff would make the apparatus perform, as required by the contract, or pay back the money and remove the apparatus from the building; but the law undoubtedly required it to be done within a reasonable time. Until that time expired, or the option exercised, the matter was to be determined by the plaintiff. Counsel contends “that every time any request or suggestion was made by the defendants with reference to this apparatus the plaintiff immediately sent representatives to Berlin to remedy any defect there might be.” But the contract required the plaintiff, upon being so notified, either to make the apparatus so fulfill the guaranty or refund the money and remove the apparatus from the building. Upon being so notified of the fact of failure, the plaintiff was bound by the contract to do the one thing or the other. That obligation was not discharged by sending “representatives to Berlin to remedy any defect” complained of. As stated, the school building was completed and ready for use September 20, 1902. The first test of the capacity of the apparatus for heating the rooms of the building came with the cold weather of that autumn. The evidence bearing upon such notification and the capacity of the apparatus to heat the rooms in cold...