Conover v. Knight

• Decision Date: 17 December 1895
• Citation: 65 N.W. 371,91 Wis. 569
• Parties: CONOVER ET AL. v. KNIGHT.
• Court: Wisconsin Supreme Court

91 Wis. 569

65 N.W. 371

CONOVER ET AL.

v.KNIGHT.

Supreme Court of Wisconsin.

Dec. 17, 1895.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by Allen B. Conover, U. F. Porter, and H. P. Padley against John H. Knight to recover for services rendered defendant as architects. From a judgment for plaintiffs, defendant appeals. Reversed.

For prior report, see 54 N. W. 1002.

This action was commenced November 2, 1891. The complaint alleges, in effect, that the plaintiffs, as copartners, were doing business as architects at Ashland, and as such, from October 1, 1889, until November 1, 1890, they rendered services to the defendant, at his request, in forming and drawing plans and making estimates for and superintending the erection of a building known as the “Knight Block,” in Ashland, for the agreed price of 4 per cent. of the gross cost of said building, which was $120,000; that the defendant had only paid on account of such services $1,300, leaving a balance of $3,500. For the second cause of action, they alleged that, as such architects, they performed extra work and services for the defendant in the replanning of the roofing twice, and that the same were reasonably worth $200; and, for the third cause of action, alleged that they performed extra work in the replanning of the roof trussing, at the request of the defendant, which was reasonably worth $200, and demanded judgment for $3,900, with interest. The answer consisted of admissions, denials, and counter allegations, by way of defense, and counterclaims, and prayed that the complaint be dismissed, and for judgment against plaintiffs for $71,300, with interest and costs. The plaintiffs replied, and denied each and every allegation of the several claims. The defendant was thereupon required to give a bill of particulars of his claims, and the same was given, and consisted of 19 different items, aggregating nearly $70,000; but they were mostly ruled out for insufficiency of the bill of particulars, or otherwise. At the close of the trial, January 12, 1894, the jury returned into court with their verdict, consisting of answers to 14 questions. The tenth, twelfth, and fourteenth are herein given as returned by the jury, together with the modifications thereof by the court, June 27, 1894, and the others are given in substance, wherein the jury find as follows: (1) By the Court: That the plaintiffs were copartners, doing business as architects, at the time mentioned in the plaintiffs' complaint. (2) By the Court: That the plaintiffs, as architects, between August 16, 1889, and on or about November 1, 1890, did render services for the defendant at his request in forming and drawing plans, in making estimates, and superintending the erection of the Knight Block, as alleged in the plaintiffs' complaint. (3) By the Court: That the defendant did promise to pay the plaintiffs, for their said services as architects and superintendents, 4 per cent. of the gross cost of said building. (4) By the Court: That the gross cost of said building was $120,000. (5) By the Court: That the plaintiffs had been paid, in all, on said services, $1,300. (6) That the plaintiffs' services were not worth anything for their alleged extra work in replanning of the roofing of said building and in replanning the roof trusses. (7) That the plaintiffs did agree, when they entered into the said contract with the defendant, that the plaintiff Conover should give his personal services in superintending the construction of said building. (8) That the original agreement was modified by the plaintiffs and the defendant, by authorizing the plaintiffs Porter and Padley to superintend, or to assist in superintending, the construction of said building. (9) That the plaintiffs were discharged by the defendant in October, 1890, from further superintending the construction of said building. (10) “If you answer the last question by ‘Yes,’ were plaintiffs discharged for good and sufficient reasons?” Answer: “Yes.” (This answer was changed by order of the court, June 27, 1894, to “No.”) (11) That the plaintiffs did not give to the construction of said building the superintendence required by the terms of the agreement or understanding of said parties. (12) “Did plaintiffs perform their part of said agreement substantially and according to the terms thereof?” Answer: “No.” (This answer was changed by order of the court, June 27, 1894, to “Yes.”) (13) That the defendant did not sustain any damage by the alleged want of ordinary diligence and skill of plaintiffs in carrying out their part of said contract. (14) “What is due plaintiffs, if anything, over and above all said fees?” Answer: “Nothing.” (This answer was changed by the court, June 27, 1894, to “$2,360.”) Upon the verdict rendered by the jury, and so changed by the court, the court ordered judgment in favor of ...