Boden v. Maher

• Decision Date: 02 February 1900
• Citation: Boden v. Maher, 105 Wis. 539, 81 N.W. 661 (Wis. 1900)
• Parties: BODEN v. MAHER ET AL.
• Court: Wisconsin Supreme Court

105 Wis. 539

81 N.W. 661

BODEN

v.MAHER ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1900.

Appeal from circuit court, Milwaukee county; James O'Neill, Judge.

Action by James Boden, administrator, etc., against John J. Maher and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Action to recover on a contract made May 17, 1892, between defendants as the first parties and Henry Gerling as the second party, whereby the second party agreed as follows: “To do all excavating which said parties of the first part desire to have done on certain premises known as Sobieski Park and the continuation of Sobieski Park, in the Twelfth ward of the city of Milwaukee,” under the direction of the assistant city engineer and said first parties, for thirteen and three-eighths cents per cubic yard according to the engineer's certificate of work actually done, 75 per cent. thereof to be paid as the work progresses, on the production of the proper engineer's certificates, and the remainder in six months after the completion of the work, and to complete such work by September 1, 1892; also to deliver, upon any portion of the premises the first party should direct, as much gravel as they should desire at the rate of fifty cents per cubic yard, and to pay ten dollars per day as liquidated damages for each day's delay in the completion of the work. The allegations of the complaint are to the effect aforesaid, also that Gerling was directed to and did commence work under the contract on the first day of August, 1892, and thereafter prosecuted such work with due diligence and as required by such contract; that the amount of excavating done was 42,163 cubic yards according to the engineer's certificate required by the terms of the contract, which was duly procured and delivered to defendants; that the amount earned by the doing of such work was $5,639.39, $1,409.91 of which has not been paid though the same became due December 1, 1892, and was duly demanded of defendants before the commencement of this action. The allegations of the complaint for a second cause of action were to the effect that Gerling entered upon a second job of excavating under the contract in the spring of 1893 by direction of defendants, and by June 1, 1893, did excavating to the amount of 4,163 cubic yards, when the work was stopped by defendants' orders; that he did not obtain an engineer's certificate for the last work; that it was waived by defendants; that they agreed with him as to the work done on such last undertaking to be 4,163 cubic yards, and paid thereon $200, leaving $356.19 unpaid, $217 of which became due June 1, 1893, and $139.19 December 1, 1893. It was further alleged that Gerling died before the action was commenced and plaintiff was duly appointed his administrator. Judgment was prayed for in accordance with the facts alleged.

Defendants answered to the effect, among other things, that the contract was made, the work commenced and was stopped, and that payments were made as alleged in the complaint, except that Gerling was requested to commence work May 17, 1892, and continuously thereafter till August 10, 1892, but that he refused to comply with such request till the latter date, and that he never completed the work as the contract required. The amount of the excavating was put in issue. The answer contained a counterclaim for stipulated damages at $10 a day, according to the contract, for 270 days' delay in completing the work. There was a reply to the counterclaim to the effect that the delay in completing the work was caused by defendants. It was further alleged in reply to the counterclaim that the liability for damages was extinguished by failure of the defendants to file their claim therefor in the county court, where the estate of Gerling was in process of administration, within the time required by statute for filing claims against such estate.

The following facts were established by the evidence: Excavating was done to the amount mentioned in the complaint and payments were made as therein alleged, without the production of engineer's certificates or any request therefor. The refusal to pay the amount due was not made on the ground that the condition of the contract regarding engineer's certificates had not been complied with. Work was commenced on the contract as soon as the preliminary work required of the engineer was performed, and thereafter it was prosecuted satisfactorily to such engineer, and without objection from the defendants, till June 1, 1893. The work was delayed from the time the contract was made, May 17, 1892, till some time in July thereafter, and from time to time subsequent thereto, by failure of the engineer to set the grade stakes. There was no evidence that any particular amount of work was designated by the defendants to be done by September 2, 1892. All the work for which grade stakes were set prior to September 2, 1892, was performed, and operations proceeded thereafter without objection till substantially all work pointed out to Gerling to be done was completed. There was left a small amount that might have been performed in two or three days after June 1, 1893, if he had been permitted to go on. The excuse for finally stopping the work was want of money to pay for it. Evidence on the part of the defendants as to conversations with Gerling when the contract was made, regarding the work to be done under the contract, going to show what the contract was made with reference to, and what work was required to be done by September 2, 1892, was rejected. Each side moved the court, at the close of the evidence, for a verdict, which was denied. Defendants' counsel moved the court for a special verdict and submitted a list of questions therefor. The questions were rejected. A special verdict was prepared by the trial judge covering all the issues made by the pleadings as he understood the cause. The jury found, in answer to such questions, that the engineer's certificate as to the work done in the spring of 1893 was waived, and that the completion of the work by September 2, 1892, was materially delayed by failure of the engineer to set the grade stakes. The questions covering all the other issues were answered in favor of the plaintiff by direction of the court. Judgment was rendered according to the verdict in plaintiff's favor.

Ryan, Ogden & Bottum, for appellants.

Riltbrock & Halsey and Geo. L. Williams, for respondent.

MARSHALL, J. (after stating the facts).

The refusal to permit defendants to prove the circumstances under which the contract was made, in order to enable the court to rightly construe it, was error. Parol evidence to vary the terms of a written contract is one thing; such evidence to enable the court to say what the parties to a contract intended to express by the language adopted in making it, is quite another thing. The former is not permissible. Steele v. Schricker, 55 Wis. 134, 12 N. W. 396. The latter is permissible and is often absolutely essential to show the real nature of the agreement. Sigerson v. Cushing...