Grant Marble Co. v. Abbot

• Decision Date: 11 January 1910
• Citation: 124 N.W. 264,142 Wis. 279
• Parties: GRANT MARBLE CO. v. ABBOT.
• Court: Wisconsin Supreme Court

142 Wis. 279

124 N.W. 264

GRANT MARBLE CO.

v.ABBOT.^d1

Supreme Court of Wisconsin.

Jan. 11, 1910.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by the Grant Marble Company against Edwin H. Abbot. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss, unless plaintiff offers further evidence on the issue stated.

The complaint in this action alleges the making of a contract between plaintiff and defendant, by the terms of which plaintiff agreed to do certain marble work in the six stories of the defendant's building known as “Colby & Abbot Building” in the city of Milwaukee, Wis., for the sum of $24,150, and that through mistake on the part of one Grant, president of the plaintiff, he included in such contract work and material for only five stories of such building while the contract covered the six stories. It is further alleged that the agent of defendant either fraudulently concealed the fact or did not know or appreciate that the additional work was included in the contract; that the original specifications for the job included only five stories, while the specifications upon which the contract was made included six stories, and that Grant, president of plaintiff, did not know that the original specifications, calculations, and bid based thereon had not included any work for the sixth story; that after plaintiff discovered the mistake it, through its agent, took the matter up with defendant's manager, who ordered the work to be done on the sixth story and promised on behalf of defendant to make it right. The plaintiff furnished the sixth story in marble the same as the story below, which was reasonably worth $2,882.05, which defendant refused to pay, claiming that the item was covered by the contract between the parties. The prayer is for reformation of the specifications and contract on which they are based so as to confine the marble work to five stories, and, further, that defendant pay for the work and material in the sixth story what the same was reasonably worth and for general relief.

Defendant moved to make the complaint more definite and certain by separately stating the two causes of action, and by electing whether plaintiff stands on its action to reform the contract referred to in the complaint and recover upon the contract as reformed for the work and material alleged not covered thereby, or upon the cause of action attempted to be stated upon alleged promise by defendant to pay in addition to the contract price, and that part of the complaint be stricken out, which motion was denied. The defendant answered, and the court found substantially: That in October, 1905, defendant, through his architect, called upon plaintiff to make estimates and a bid upon marble wainscoting in the corridors of said building, and at said time there were corridors partitioned off in the first to the fifth stories, inclusive. That the outer walls of the sixth story were in course of construction, but the interior had no existence. That plaintiff sent one Martin, an employé, to said architect for the purpose of receiving instructions and making measurements, and that the architect pointed out to Martin the character of the wainscoting required in each of the five stories, and asked him to make measurements of the same, and that the plaintiff submit a bid therefor, at the same time informing him that the manner of finishing the sixth story then in course of construction and the work required therein had not been determined. Said architect also submitted to said Martin certain written specifications for such wainscoting, calling for the same for the first, second, third, fourth, and fifth stories only. That said Martin thereupon made measurements of all of said corridors in which said work was to be done and submitted same to the plaintiff. That plaintiff thereupon, on October 27, 1905, submitted to said architect, through J. E. Heimerl, its agent charged with making estimates and bids in its behalf, a bid offering to do said marble work for $20,050. That thereafter, and prior to the 11th day of November, 1905, said plaintiff was informed by said architect that additional marble work was required for said building of which items were given plaintiff. Said plaintiff was also asked to submit a bid for putting marble floors in parts of the first story of said building and in the corridors of the second, third, fourth, and fifth stories thereof. Plaintiff prepared a bid thereon in writing, dated November 11, 1905, and caused the same to be sent to the office of said architect, but the evidence does not convince the court that said architect received it. That prior to the 29th day of October, 1905, said architect had prepared specifications calling for marble wainscoting, also specifications for the floors, calling for tile flooring, and had received bids on behalf of said specifications, said floor specifications being confined to the first, second, third, fourth, and fifth stories of said building. That on the 29th day of October, 1905, it was concluded at a conference between defendant, his secretary at Milwaukee, and said architect to finish all corridors in said building, including corridors thereafter to be laid out in the sixth story, with marble floors and marble wainscoting. That no notice of such change of plan or enlargement of the work was ever given to plaintiff or any agent of plaintiff, nor to any other contractor. That the specifications theretofore made by said architect remained on exhibit in his office and were not changed or amended, nor was any specification calling for marble floors or marble wainscoting in the sixth story ever prepared by said architect, but long after said date, and on or shortly before the 14th of November, 1905, a copy of the aforesaid specifications was delivered to said Heimerl, representing the Grant Marble Company. That said Grant Marble Company, through said Heimerl, made its estimate of the cost and value of doing said work according to the information and the specifications so furnished by said architect. That the final instructions of said architect included some other items of work and said Heimerl figured up the total cost and value thereof at $27,821. That on the 14th of November, 1905, said architect called up W. J. Grant, president of plaintiff, who was then in Chicago, by telephone, asking him to come to his office with the view of a contract on the building of said defendant. That said Grant, in pursuance of such message, came to Milwaukee on said day, and proceeded directly to the office of said architect. That said Grant had taken no personal part in examining the specifications or the extent of work required thereby or by instructions of said architect, but the same had been wholly attended to by said Heimerl. That said Grant met said Heimerl at the office of said architect, and was informed by him that the total of said work amounted to the aforesaid sum of $27,821, and that a reduction from said figures was desired. That said Grant, said Heimerl, and said architect thereupon proceeded to the office of Miss Bright, secretary of said defendant, in the same building, and said Grant then and there informed said architect and Miss Bright in the presence of said Heimerl that the bid of the Grant Marble Company for the work in question would be said sum of $27,821. That said architect and said secretary asked for a reduction of the amount, and said Grant thereupon suggested the change of material, which would somewhat cheapen the cost, and also made concessions of price, reducing said bid to $24,150, which was acceptable to said secretary and architect, subject to the approval of the defendant, which was afterwards given. That in making said final bid said Grant was not informed of any work required in any way adding to or extending the work which had theretofore been exhibited to said Heimerl by said specifications and the instructions of said architect. That said Grant thereupon offered to put the specifications for the contract in proper shape. That he drew the same, and, knowing that said building was being enlarged to six stories and supposing that the floors and wainscoting in the corridors of each of such stories was embraced in the work submitted to and estimated by said Heimerl, he drew the same covering such work in six stories of said building. That said Grant was at that time in a state of mental distress by reason of the critical illness, which shortly afterwards terminated in death, of his son, by reason whereof he was less careful in examining the premises than he otherwise would have been. When he submitted said specifications to said architect and Miss Bright, no information was given to him of the extent of the work which had been submitted to said Heimerl as aforesaid. That in the month of January, 1906, and before any work had been done on said sixth floor, said Heimerl discovered that said specifications called for marble floors and marble wainscoting in the sixth story of said building and he at once called the attention of said Grant to the mistake, and said Grant thereupon called upon the secretary of said defendant, and showed her the specifications and the schedules of the Grant Marble Company giving the itemized figures of the bid, and that the same related to five stories only in accordance with said specifications. Said secretary said she would write to the defendant about it, and a few days later read to said Grant a portion of a letter received by her from defendant dated January 22, 1906, of which the following is a copy: “Replying to yours of the 20th about Mr. Grant, I appreciate what you say and I do not want him to make a loss on his contract. You can tell him that I will personally take up the matter with him when the work is all finished and see what is really fair. I do not propose to have him make a loss for a mistake,...