Bedard v. Bonville

• Decision Date: 13 March 1883
• Parties: BEDARD AND OTHERS v. BONVILLE.
• Court: Wisconsin Supreme Court

57 Wis. 270

15 N.W. 185

BEDARD AND OTHERS

v.BONVILLE.

Supreme Court of Wisconsin.

Filed March 13, 1883.

Appeal from circuit court, Chippewa county.Bingham & Pierce, for respondents, Felix Bedard et al.

Arthur Gough, for appellant, Frank Bonville.

TAYLOR, J.

This action is brought to recover a balance claimed to be due the respondents for work and labor performed by them for the appellant at his request, etc. The case was first tried in the municipal court, and from that court the case was appealed to the circuit court of Chippewa county, in which latter court the case was tried by a jury and a verdict rendered in favor of the respondents for the sum of $85. From the judgment rendered on such verdict the defendant appealed to this court. One of the questions which arose on the trial of the action depended upon the construction of a writen contract between the parties, which was introduced in evidence on the trial. The respondents claimed that there was $50 due to them for the work done under the contract, and $38.50 for work done not covered by the contract, and which they called extra work. The respondents' evidence as to this extra work was as follows: The respondent Bedard testified: “After we had commenced building the counter, Bonville told me to make it six or seven feet longer. I told him our lumber was cut and counter almost made; if I made it longer I wanted pay for it. He said he would pay for it. It was worth $10 to make it six or seven feet longer. Bonville directed first how to make it and then had me change it. We did extra work on the inside of the front of the basement. We furnished the window-casings, and paneled and cased inside the basement, and paneled in the skylight. Bonville told us to do it. He said, ‘I don't know how I shall do that; I have no men.’ I said, ‘My job is done.’ Bonville said, ‘Your job is done; go and finish it and I will pay for it.’ We finished it and furnished the materials. It was worth $25. I considered my job done when the door was up, the windows in the frames, and sash in the front.”

Another witness for the respondents testified: “I was helping Bedard hang doors when Bonville came in and said, ‘he wished the basements were ready; they were rented and parties wanted the rooms very bad.’ Bedard said to him, ‘I have done all I agreed to do, Mr. Bonville.’ Bonville said, ‘Well, go on and fix it and I will settle with you. I will fix it; go on and do the work and I will fix it with you.’ I helped work in the basement. I did the extra casing. We did extra work casing the doors and putting on wainscoting and uprights to be lathed on; put casing on the doors and windows; extended the jambs, cased around the alcoves, put in window-sills, and turned the stairs; what we done was worth $20.” Upon the question of Bonville's promise to pay for this work, or extra work, he testified, speaking of what Bedard said about it: “Perhaps he did say that he had finished his work; I don't recollect. I told him to go on, and, if it did not belong to him, I would pay for it. I got all the work in the basement done myself, except a part of the front.” The following is a copy of the written contract between the parties:

“Articles of agreement made this eighth day of August, 1881, between Frank Bonville, of Chippewa Falls, Chippewa county, state of Wisconsin, party of the first part, and P. Cartier and F. Bedard, of the same place, parties of the second part: Witnesseth, that the said parties of the second part agree to finish, in the same style and same material, both of the stores being built on lot 8, block 21, as the one store now occupied by Chapman & Co., the first floor being laid with hard lumber inside and outside the counters, and also to finish the front part of the basement, with the stairway going up to the second story, and also the outside two cornices in front of the store, in same style of Brown-Fletcher block.

In consideration of the above agreements the party of the first part agrees to pay the parties of the second part the sum of $1,200, to be paid as fast as the work is performed by parties of the second part.

It is further agreed that the parties of the second part are to finish said work in five weeks after the plastering of the said work on first store is done.”

The learned circuit judge, instead of submitting the question of the right of the respondents to recover for this work as extra work not covered by the contract, upon the theory that there was a dispute about it between the parties, and that the defendant made an unqualified promise to pay for the work as extra work if the plaintiffs would go on and do it, instructed the jury as a matter of law this work on the inside of the front part of the...