Foeller v. Heintz

• Decision Date: 27 November 1908
• Citation: 118 N.W. 543,137 Wis. 169
• Parties: FOELLER v. HEINTZ.
• Court: Wisconsin Supreme Court

137 Wis. 169

118 N.W. 543

FOELLER

v.HEINTZ.

Supreme Court of Wisconsin.

Nov. 27, 1908.

Syllabus by the Judge.

An architect, as the mutual agent of builder and proprietor to construe plans for a structure and settle disputes in that regard, has no authority to change the plans.

The rules permitting a builder to recover upon an entire building contract, only substantially performed, less damages for incompleteness, apply to an entire contract for supervision of the execution by an architect.

If a builder, by inexcusable fault of the supervising and directing architect, departs from the plans agreed upon, the damages may be charged to the architect.

To constitute substantial execution of a building contract, or one to supervise and direct the construction of a building according to specific plans and with the usual architect's duty in such cases, the structure as completed must be the result of good faith efforts to strictly perform and must satisfy with exactness all essentials to the accomplishment of the proprietor's purpose.

The test of substantial performance is not inconsistent with imperfections in matters of detail, not defeating the object of the proprietor by going to the root of the matter, yet requiring a considerable outlay to afford him, for a given amount of money, in substance the thing agreed upon.

Substantial performance is consistent with there being incompleteness in matters of detail, some of which are practicably structurally remediable and others not so, in the aggregate requiring a considerable sum of money.

Incompleteness consistent with substantial performance can be remedied, structurally, practicably, and reasonably, that is, without an expenditure of an unreasonable sum of money, when the element of incompleteness can be obviated without destruction of any material part of the building erected according to contract.

The rule of damages by which to measure the proprietor's loss in case of substantial performance only of a building contract, is the reasonable cost of remedying the defects which can be practicably remedied so as to make the structure exactly conform to the agreement, and the difference between the value of the structure so completed and one like the building agreed upon. On this subject a mistake in Ashland Lime, Salt & Cement Co. v. Shores, 105 Wis. 122-133, 81 N. W. 136, pointed out and corrected.

The judicial rule grounded in equity permitting recovery upon an entire building contract, but substantially performed, aims to give the proprietor, in substance, and as near as practicable, the very thing contracted for; not merely in value, but in form and character.

In case of good faith efforts to perform an entire building contract, resulting in a structure satisfying all essentials to the substantial purpose of the proprietor in making the agreement, he is obligated to pay upon the agreement the entire contract price, subject to deductions for incompleteness as stated in the foregoing, the fact that the structure as completed is of as great or even of greater market value than the one called for not being controlling.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Henry A. Foeller against John F. Heintz. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Action by an architect to recover on two contracts, one for making plans and specifications for a dwelling house and the other for superintending the construction thereof.

Defendant pleaded as a defense to plaintiff's second claim that the contract was entire and was not fully performed. He also counterclaimed for damages in the sum of five hundred dollars because plaintiff caused material departures from the plan without any authority so to do and against his protest.

The contract with the builder contained the usual provisions making the supervising architect arbitrator to settle disputes between the former and the proprietor as to the calls for the plans and other matters, but no authority was given either the builder or the architect to vary the plans in any respect without authority of or consent by defendant.

There was no controversy in the evidence but that plaintiff was entitled to recover $98.11, on the first contract and $74.19 on the second, subject to the defense for nonperformance of the latter and defendant's right to damages for such nonperformance.

There was evidence to the effect that there were material departures from the plans as claimed by the defendant and that it was practicable to remedy the same at a cost of $400. There was no evidence respecting the difference in value between that of the structure as completed and what it would have been had the plans been strictly followed. Though the plans showed a different roof projection and construction on the front of the building from that on the other three sides there was but one detail drawing. That corresponded with the plan for the side and back elevations. The builder, with plaintiff's approval, applied such detail to the front of the building although the elevation therefor plainly called for a different construction. The defendant insisted on the scheme as indicated in the front elevation being carried out to the letter, while the builder, with the approval of the architect, ignored the difference in the order of construction, making all sides correspond with the single detail drawing. The court decided as matters of fact, that the plans for the structure were unwarrantably changed by the architect in a material particular; that the change was made under pretense that the plan called for a front structurally and architecturally imperfect, and that it was his right and duty to correct the mistake; that the change did not have reference to those corrections in minor particulars which are ordinarily, and were in the given case, within the authority of the architect to make, but appertained to a substantial feature of the building which defendant was entitled to have as designed, if he wanted it that way, whether the same coincided with the views of the architect as to architectural and structural completeness or not; that it is practicable to reconstruct the front of the building so as to make the same conform to the design, at a cost of $400; that plaintiff is not entitled to recover anything upon the entire contract for supervision because of a substantial failure to perform the same, but is entitled to recover the full amount earned under the first contract less six cents only, damages for breach of the second contract because of there being no evidence showing the difference between the value of the building as constructed and the value of one constructed according to the design. Judgment was rendered accordingly.Sol. P. Huntington, for appellant.

Cady, Strehlow & Jaseph, for respondent.

MARSHALL, J. (after stating the facts as above).

The finding that respondent exceeded his authority by approving of a material departure from the plans for the building, resulting in appellant failing to get what he bargained for, cannot be disturbed. It is conceded that the structure called for, as to the front thereof, was materially varied, but insisted that there was an inconsistency between the plan therefor and the single detail drawing, which was adaptable only to the three other sides, all four of which, from a professional standpoint, in view of the form of the building, should be in harmony, in order to be architecturally and structurally correct, fairly indicating a mistake in the primary drawing, rather than an omission to make an appropriate subsidiary drawing, which was in the field of respondent's authority to correct under the provision of the contract, that all disputes respecting the true construction or meaning of the drawings should be decided by him and that his decision should be final. That contemplated construction, as the words clearly indicate, not material changes in principal, to fit secondary drawings. There was no question but that the former plainly called for that which respondent assumed authority to change against the protest of the proprietor, upon the ground that in the draught he had made a mistake. That was going outside the field of arbitration laid down in the submission and so not binding on appellant. An arbitrator, barring inexcusable mistakes and bad faith, is supreme within his jurisdiction, but the moment he passes beyond the boundaries thereof, he becomes a usurper and his acts are void, as are all acts of usurpation. Bartlett v. L. Bartlett & Son Co., 116 Wis. 450, 93 N. W. 473;Consolidated Water Power Co. v. Nash, 109 Wis. 490, 85 N. W. 485;Burnham v. City of Milwaukee, 100 Wis. 55, 75 N. W. 1014. The result of all the authorities is that the award of an arbitrator so far as not within the lines of the submission is not binding upon any party thereto. 2 Am. & Eng. Ency. of Law (2d Ed.) 669, 670. Within that rule we cannot see any justification for a change of the building plan under delegated authority to construe. The principal drawing, as the learned trial court rightly held, formed the basis of the contract. The details were matters of execution. In contemplation of the agreement such principal drawing, as approved by the proprietor, formed the test of what was required for performance.

The learned trial court decided that respondent, without intentional wrong, caused the departure from the plan, but in a particular easily remediable by the expenditure of $400, a small amount as compared with the cost of the structure, and as appears without destruction of any material part thereof erected according to contract, and yet decided that respondent was not entitled to credit for the contract price of supervision, though the rule in respect to the matter were the same as in case of the building contractor. We see no good reason why the equity of the law extended to the latter should not include the former. We approve of the...