Halsey v. Sanitarium

• Decision Date: 23 June 1905
• Citation: 104 N.W. 94,125 Wis. 311
• Parties: HALSEY v. WAUKESHA SPRINGS SANITARIUM.
• Court: Wisconsin Supreme Court

125 Wis. 311

104 N.W. 94

HALSEY

v.WAUKESHA SPRINGS SANITARIUM.

Supreme Court of Wisconsin.

June 23, 1905.

Appeal from Circuit Court, Waukesha County; James J. Dick, Judge.

Action by W. H. Halsey against the Waukesha Springs Sanitarium to enforce a mechanic's lien. From a judgment in favor of defendant, plaintiff appeals. Reversed.

In 1901 the respondent, having in process of construction and repair a building, entered into contract with the appellant to do and furnish the plumbing work and material thereon to an amount of $4,000, according to certain specifications. That contract contained the usual clauses, naming an architect to act as agent of the owner; requiring the performance of the contract to his satisfaction, that he should be final arbitrator, and that the contract price, as also the price of any extras, should be paid on certificates from the superintendent at the rate of 85 per cent. of the work; the remaining 15 per cent. to be held as security for completion of the work, and to be paid or applied under the direction of the superintendent. After the building was nearly completed, and appellant had performed all the contract work except about $228, besides some $1,300 of extra work, the building burned down, by accident, on December 2, 1901, so as to render the completion of plaintiff's contract impossible. His work up to about November 20th had been approved from time to time, and certificates issued for 85 per cent. thereof, and duly paid. After the fire a bill for the total was presented to the architect, who refused to pass upon it in any way, saying that plaintiff must deal with the managing officer of the company, and thereafter persisted in such refusal, although he testified upon the trial that all of the work done accorded with the contract, with exception of a mixing table rejected as not satisfying specifications, and that the extras were satisfactory. This action was brought to enforce a mechanic's lien for the price of the extras and the amount of the contract, less the value of the parts thereof which had not been performed at the time of the fire, aggregating about $78. The answer claimed additional remission in the sum of $175 for one sink entirely omitted and for said mixing table. The claim for lien and the complaint both demanded a lien upon a 12-acre tract, correctly described, upon which the building was situated. It appeared, however, that the premises were within a city, and some attempts were made to amend the claim and complaint so as to describe a specific acre within said 12. The last attempt, seeking to make such description by metes and bounds, was made after decision, but before judgment, and was denied by the court. The court held that the architect's certificate was a condition precedent to plaintiff's right to payment, and also held that the description of the premises was too indefinite, and rendered judgment dismissing the complaint and the claim for lien. From that judgment the plaintiff appeals.Hamilton, Van Wyck & Silber (Timlin & Glicksman, of counsel), for appellant.

Tullar & Lockney and Ryan, Merton & Newbury, for respondent.

DODGE, J. (after stating the facts).

1. When complete performance of an entire contract to do work upon another's building is prevented by the total destruction of that building, such completion is excused, and the contractor may recover pay at the contract price for the portion of the work done. Cook v. McCabe, 53 Wis. 250, 10 N. W. 507, 40 Am. Rep. 765;Vogt v. Hecker, 118 Wis. 306, 309, 95 N. W. 90. The present case falls clearly within this rule, for plaintiff was only to do work upon a building to be supplied by the owner or its employés.

2. The efficacy of an agreement that an architect's certificate shall be a condition precedent to a contractor's right to payment has often been declared. Coorsen v. Ziehl, 103 Wis. 381, 79 N. W. 562;John Pritzlaff Hardware Co. v. Berghoefer, 103 Wis. 359, 79 N. W. 564;Mindeman v. Douville, 112 Wis. 413, 88 N. W. 299. Such an agreement is, however, deemed and construed to embody the condition that the architect shall exercise his function as arbitrator honestly and in good faith. He usually is, as in the instant case, the employé and agent of the owner, and, but for such a condition, can, if he will, absolutely deprive the contractor of all pay for his work, however exactly it may comply with the contract. An agreement to submit the question of pay or no pay to the mere whim, or worse, of one in an opposing interest, is too absurd for belief that parties' minds met thereon. Hence the rule is well established that he who performs his contract may recover in court his pay therefor, notwithstanding such agreement, if it appear that he is disabled from obtaining the architect's certificate by collusive, fraudulent, arbitrary, or unreasonable refusal by the latter. Hudson v. McCartney, 33 Wis. 331, 341;Bentley v. Davidson, 74 Wis. 424, 43 N. W. 139;Wendt v. Vogel, 87 Wis. 465, 58 N. W. 764. More obviously still is one excused if the issue of the certificate is prevented by act of the owner. Bannister v. Patty's Executors, 35 Wis. 215, 225;Ashland Lime, Salt & Cement Co. v. Shores, 105 Wis. 122, 132, 81 N. W. 136;Boden v. Maher, 105 Wis. 539, 547, 81 N. W. 661; Mindeman v. Douville, supra; McDonald v. Patterson, 186 Ill. 381, 384, 57 N. E. 1027.

The evidence as to what transpired after the fire between plaintiff, the architect, and Dr. Caples, the defendant's managing officer, is not in dispute. Upon presentation of plaintiff's final bill, the architect assured him that his work was all satisfactory, except a mixing table, but said he could not give certificate, because Dr. Caples had withdrawn from him the contract. The architect testified that after such withdrawal of the contract he exercised no authority under it, and so stated to plaintiff. At the same time he told plaintiff he must see and deal with Caples. Thereupon plaintiff applied to Caples for payment, was met with no suggestion that a certificate was needed or would vary the situation, but was told the defendant would compromise by allowing 85 per cent. of the total bill, and by giving plaintiff a contract on rebuilding, and if that were not accepted they would keep him out of his money as long as they could. There was no claim that the defendant did not legally owe the whole amount, nor that Caples needed the certificate or any information from the architect to assure him of the work done or the amount due, of which it appears the architect had already informed him. We can entertain no doubt that the conduct of the architect in refusing a certificate was arbitrary, unjust, and, in the legal sense, fraudulent. It was the architect's duty, as between plaintiff and defendant, to exercise his judgment, and make a decision as to whether plaintiff was or was not entitled to the sum demanded, and, if not, then to what sum. His errors in performing such duty might be unassailable....