Fitzgerald v. Walsh

• Citation: 82 N.W. 717,107 Wis. 92
• Parties: FITZGERALD v. WALSH.
• Decision Date: 15 May 1900
• Court: United States State Supreme Court of Wisconsin

107 Wis. 92

82 N.W. 717

FITZGERALD

v.WALSH.

Supreme Court of Wisconsin.

May 15, 1900.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Charles Fitzgerald against F. A. Walsh. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to enforce a claim for a lien for architect's services under the statutes in relation to the liens of mechanics and others. The complaint was in the usual form, except that it stated that the plaintiff's services were performed in making plans and specifications for a building to be erected, without the usual allegations showing actual work upon the building. Appellant answered, putting in issue, in the main, all the material allegations of the complaint. The controverted facts on the evidence were as regards the nature of the contract under which plaintiff's services were performed and the amount of the indebtedness which accrued for such services. On those questions the court signed findings to the effect that it was agreed between plaintiff and defendant that the former should prepare plans and specificationsfor a building to be erected on the premises described in the complaint and superintend the erection of such building for $1,000; that plaintiff fully performed his part of such agreement as to the making of plans and specifications, and that the work was fully accepted by the employer; that appellant thereafter abandoned the idea of erecting a building according to such plans and specifications, and ordered plaintiff to make new plans and specifications for an entirely different kind of structure; that plaintiff fully complied with such order; that his work was accepted by the employer and the excavation for the building commenced in accordance therewith; that the reasonable value of plaintiff's work was $1,400, no part of which has been paid. There were sufficient findings as to the filing of the lien claim and the commencement of the action. A lien judgment in plaintiff's favor was rendered in accordance with the statutes on the subject of liens of mechanics and material men, the amount due plaintiff being fixed at $1,400 and interest, from which this appeal was taken.

Timlin, Glicksman & Conway, for appellant.

J. M. Clarke and P. J. Somers, for respondent.

MARSHALL, J. (after stating the facts).

Three questions are presented for consideration on this appeal: (1) What was the indebtedness of defendant to plaintiff for the work rendered by the latter, mentioned in the complaint? (2) Is an architect entitled to a lien, under section 3314, Rev. St., for compensation for making plans, specifications and estimates for a contemplated building upon the land of another, if the construction of the building, pursuant to such plans, be commenced, though the use of them be abandoned before anything is done except a part of the excavating for the basement? (3) Was the construction of the building commenced according to the plans and specifications furnished by plaintiff?

1. Appellant's counsel contend that, plaintiff having agreed in writing to make plans and specifications for the building and to superintend its erection for the stipulated price of $1,000, an express contract was necessary to give him a legal claim upon the appellant for services rendered without objection, not included in such contract, basing such contention on the rule governing the relations of master and servant and that between an officer of a corporation and his principal in regard to personal services. Such rule does not apply to a situation of the kind in question. It is well settled that where a builder is ordered to make changes from the original contract plans, which are really extras, or to do work in some way connected with the original contract but substantially independent of it, and the circumstances are such that the proprietor must know that the execution of such orders will cause extra labor and expense to the builder not contemplated by either party in the original contract, he is liable to compensate the builder therefor in the absence of some express provision in such original contract to the contrary. The rule is stated in 1 Hud. Bldg. Cont. p. 358, citing Gibbons v. United States, 15 Ct. Cl. 174, thus: “Where a change in the contract is ordered amid circumstances which imply or warrant the belief that no extra cost will result from the change, it is the duty of the contractor to notify the other party that he cannot make the change without extra price. But where a change is ordered which must necessarily cause increased expense, no such notice is necessary.” Such work cannot be said to have been in contemplation by the parties at the time of making the contract for the construction of the building. There was no meeting of minds on that subject. So the doing of such work, when ordered, without objection, cannot reasonably be said to be voluntary and without expectation of compensation if the expense to the builder is thereby necessarily materially increased. In such circumstances an implied promise arises to pay for the extra or independent work, in the absence of anything in the contract to the contrary. Boody v. Railroad Co., 24 Vt. 660, 665; Engineering & Arch. Jur. p. 490; Escott v. White, 10 Bush, 169.

Now the trial court found, on such evidence that the finding cannot be disturbed, that respondent, pursuant to his contract with appellant, made complete plans and specifications for a building to be erected on appellant's premises, and that they were accepted. That branch of the contract was thereby fully executed. Respondent did not agree to make all plans and specifications appellant might order in contemplation of the construction of a building, but to make plans and specifications for the proposed building. The only reasonable, sensible construction of that language is that it called for one set of acceptable plans and specifications. That being satisfied, the acceptance of an order for another set was neither within, nor a mere extra, incidental to, the original contract.

The accepted order for the second set of plans was rightly decided by the trial court to constitute a new contract having no relation to the work under the written contract, and not governed thereby except as to the price for the new work. Nothing having been said about compensation therefor, it was fair to presume, as the trial court did, that both parties contemplated that it would be paid for at the same rate as the original work of the same nature, called for by the writing.

It is considered that there were two separate and distinct contracts in this case as plainly as there was in Hand v. Agen, 96 Wis. 493, 71 N. W. 899. The first contract, exclusive of the work of superintending the construction of the building, having been fully executed, the rule announced in Boody v....