Grafton v. Hinkley

• Decision Date: 20 June 1901
• Parties: GRAFTON v. HINKLEY ET AL.
• Court: Wisconsin Supreme Court

111 Wis. 46

86 N.W. 859

GRAFTON

v.HINKLEY ET AL.

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, Fond du Lac county; Michael Kirwan, Judge.

Action by Charles C. Grafton against J. W. Hinkley and another and L. D. Hinkley and M. D. Althouse, sureties. From a judgment in favor of plaintiff, defendants Hinkley and another and the sureties prosecute separate appeals. Reversed.

This action is to recover $2,033.88, with interest from December 18, 1897, as damages for the breach of an agreement in writing made and entered into June 1, 1895, by and between the plaintiff, Mr. Grafton, and the defendants, J. W. Hinkley and Harry Powers, as co-partners under the firm name of Hinkley & Powers, wherein and whereby that firm agreed, in effect: To furnish all the material and perform all the work required in the construction and erection of a stone and brick seminary building for Grafton Hall at the place described, and do everything necessary and required to be done in, to, and about said stone and brick seminary building, according to the plans and specifications made for the same by Conover & Porter, architects, dated May 31, 1895. That all work should be executed in a thorough, complete, and most workmanlike manner, and agreeable to such directions as might be given from time to time by the architects and superintendents, through their local superintendent, or such person as might be employed by Mr. Grafton to superintend the work, and to such superintendent's full and entire satisfaction, without reference thereon to any other person. That, if any alteration should thereafter be made by orders of Mr. Grafton or the superintendents, which they might deem necessary, varying from the plans or specifications, either by adding thereto or diminishing therefrom, or otherwise however, such alterations should not vacate the contract thereby entered into, but the value thereof should be ascertained by said superintendents, and added to or deducted from the sum of money thereinafter mentioned, as the case might be; nor should such alterations, either in addition, diminution, or otherwise, supersede the condition for the completion of the whole of the work at the time therein expressed, but Hinkley & Powers should, if such alterations, of whatever sort, required it, increase the number of their workmen, so that the same, as well as the work contained in the plans and specifications, should be completely finished, and so delivered up to Mr. Grafton, clean, and in good order for use, inclosed, by December 1, 1895, and finished, if so ordered, April 1, 1896. That all matters of difference between the parties should be judged of, determined, and adjusted solely by the superintendents. That, if Hinkley & Powers should neglect or refuse to carry on the work with such dispatch as should be thought necessary by the superintendents to complete the same by the time therein mentioned, or should neglect or refuse to furnish such material for or to do the work as by the superintendent directed, it should be lawful for Mr. Grafton or his superintendents to employ such other person or persons as he should think fit or necessary to furnish such unprovided material, or to furnish any of the unfinished work, after having given notice in writing to Hinkley & Powers in the manner therein prescribed; and the bill or bills for any artificer that might be employed, or for materials furnished, and all expenses incidental thereto, should be deducted out of any money that might be due or to become due on the contract, and owing to Hinkley & Powers, or any part thereof, as the case might be; and, in case of a deficiency, Hinkley & Powers and their sureties should be held liable therefor. That all payments made on the work during its progress were to be on account of the contract, and should in no case be construed as an acceptance of the work executed and materials furnished, and that Hinkley & Powers should be liable to all the conditions of the several agreements until the work should be completed and accepted as finished. That no part of the work covered by the contract was to be relet or subcontracted without the consent in writing of Mr. Grafton. That in consideration of the faithful performance by Hinkley & Powers, as above stated, Mr. Grafton agreed to pay Hinkley & Powers, on the certificate of the superintendents, $30,373.00, to be paid in the manner therein stated. That no material should be estimated or paid for until wrought into the construction of the building. That, unless notified in writing to complete the work on or before October 1, 1895, the work under the contract should be terminated with inclosing the building as specified in the specifications or modifications attached, and the settlement made upon the basis of the amended propositions of Hinkley & Powers and Joseph Hutter. At the time of the execution of such contract,--June 1, 1895,--the contractors, Hinkley & Powers, as principals, and the defendants L. D. Hinkley and M. J. Althouse, of Waupun, as sureties, under their respective hands and seals executed a bond to the plaintiff in this action in the penal sum of $20,000, to be paid to Mr. Grafton, for which payment well and truly to be made they thereby bound themselves, their heirs, executors, and administrators, jointly and severally. The condition of the obligation was such that, if Hinkley & Powers should well and faithfully perform all of the conditions contracted to be performed by them as by the terms of said contract stipulated, without fraud or delay, and should pay all bills for labor and material incurred therein, then such bond to be void, and of no effect; otherwise, to remain in full force and virtue. June 7, 1897, Hinkley & Powers commenced an action against a corporation known as Grafton Hall, to enforce a lien for work, labor, and materials furnished under such contract against the seminary building so contracted for; and the judgment entered in that action in favor of Grafton Hall was affirmed by this court. 101 Wis. 69-76, 76 N. W. 1093. December 31, 1897, Mr. Grafton commenced this action for the breach of such contract against Hinkley & Powers and their sureties named in such bond. After alleging the making of the contract and bond, the complaint in this action alleged, in effect, that Hinkley & Powers entered upon the performance of such contract in June, 1895; that they continued the work and labor and the furnishing of material under the contract until October 31, 1896, when they declared that they had completed the building, and refused to do anything more thereon; that in truth and in fact Hinkley & Powers had not completed the building in several particulars alleged, as they well knew, and were notified in writing by such superintendents; that Mr. Grafton was damaged by reason of such failure in the sum of $487.80, the reasonable costs and value of finishing the building; that, in addition to such damages, there were at the time Hinkley & Powers so refused to complete the building outstanding bills for lumber, labor, and material incurred by them in their construction of the building amounting to $1,903.59, no part of which had been paid by them, and that the plaintiff herein had been compelled to pay and discharge the same, as follows: $1,751.73 to Moore & Galloway Lumber Company, for materials, as therein stated; $230 to Fond du Lac Implement Company, as therein alleged; and also $52.15, as therein alleged,--making the gross sum $2,033,88. The sureties separately answered by way of admission, denials, and counter allegations, and, among other things, alleged, in effect, that the contract of Hinkley & Powers terminated October 1, 1895, by reason of Mr. Grafton's failure to notify these defendants, or either of them, on or before that date, that Hinkley & Powers should complete the contract, and that by such failure of Mr. Grafton to give such notice in writing they were released as such sureties. Hinkley & Powers also answered by way of admissions, denials, and counter allegations; and, among other things, alleged a counterclaim for extra work, material, labor, and services by reason of change in plans and specifications, made at the special instance and request of Mr. Grafton, which were reasonably worth $2,147.37, no part of which had been paid, and for which they demanded judgment. The plaintiff, by way of reply, put in issue the counterclaim; and also pleaded the judgment in favor of Grafton Hall in the action brought by Hinkley & Powers to enforce a lien against that corporation, as stated. At the close of the trial the court held that there was no question to go to the jury; that the plaintiff was entitled to judgment, as prayed for in his complaint; and thereupon the court made findings of the undisputed facts as stated, and conclusions of law to the effect that Hinkley & Powers waived the giving of the written notice of October 1, 1895, provided for in the contract, and accepted in lieu thereof parol notice; that such waiver in no wise changed the rights or liabilities of the parties to the contract, nor of the sureties who signed the bond; that the sureties remain personally liable upon the bond after such waiver of written notice and acceptance of parol notice, the same as before; that the plaintiff was entitled to recover the amount prayed for in his complaint, with interest; that Hinkley & Powers were not entitled to recover upon their counterclaim, or any part thereof, by reason of such judgment in favor of Grafton Hall, and the fact found that there had been no change in the relations of the parties to the subject-matter since. From the judgment entered thereon accordingly, Hinkley & Powers and the sureties separately bring these two appeals.

Duffy & McCrory, for appellants.

Edward S. Bragg, for respondent.

CASSODAY, C. J. (after stating the facts).

Before the plaintiff had rested his case, and during the cross-examination of Mr. Conover,--one...