Hinkley v. Hall

• Decision Date: 01 November 1898
• Citation: 101 Wis. 69,76 N.W. 1093
• Parties: HINKLEY ET AL. v. GRAFTON HALL.
• Court: Wisconsin Supreme Court

101 Wis. 69

76 N.W. 1093

HINKLEY ET AL.

v.GRAFTON HALL.

Supreme Court of Wisconsin.

Nov. 1, 1898.

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

Action by J. W. Hinkley and another, copartners, against Grafton Hall, a corporation, to enforce a mechanic's lien. Judgment for defendant, and plaintiffs appeal. Affirmed.Duffy & McCrory, for appellants.

E. S. Bragg, for respondent.

CASSODAY, C. J.

It appears from the record: That June 1, 1895, the plaintiffs, as co-partners, entered into an agreement with one Charles C. Grafton, bishop of the diocese of Fond du Lac, wherein and whereby the plaintiffs, in effect, agreed to furnish all the material and perform all of the work required in the construction and erection of a stone and brick seminary building for the defendant, a corporation known as Grafton Hall, on Sophia street, in Fond du Lac, and to do everything necessary and required to be done in, to, and about the same, 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 workmanlike manner, and agreeably to such directions as might be given from time to time by Conover & Porter through their local superintendents, and to such superintendents' full and entire satisfaction, without reference thereof to any other person. That, if any alterations should be made, such alterations should not vacate the contract, but the value thereof should be ascertained, and added to or deducted from the sum therein mentioned. To be completely finished and delivered up to Mr. Grafton, clean and in good order for use, and 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 the plaintiffs 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 mentioned, or should neglect or refuse to furnish such material for or to do the work as by the superintendents directed, it should be lawful for Mr. Grafton or his superintendents to employ such other person or persons as they should think fit or necessary to furnish such unprovided material, or to finish any of such unfinished work, after having given notice in writing to the plaintiffs, and that the plaintiffs and their sureties should be held liable therefor. That no payment should be construed as an acceptance of the work executed and materials furnished. That, in consideration of the faithful performance by the plaintiffs, Mr. Grafton thereby agreed to pay to the plaintiffs, on the certificate of the superintendents, $30,373, to wit, 90 per cent of the proportionate value of the work done monthly as the work progressed, on the estimates of the superintendents; and the remaining 10 per cent., together with all other sums, if any, due on the contract, should be paid on the completion and acceptance of the entire work as therein contracted for, or as soon thereafter as Mr. Grafton should be satisfied that the work was completed and assured against the existence of mechanics' liens on 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 of modifications attached, and a settlement made upon the basis of the amended propositions of the plaintiffs and Joseph Hutter. That, by the propositions thus referred to, Joseph Hutter was to do all the mason work, lathing, and plastering, and to receive therefor out of the sum mentioned $15,781, and that the plaintiffs should have the balance, to wit, $14,502. That June 7, 1897, the plaintiffs commenced this action. That the plaintiffs in their complaint alleged two causes of action. That the first cause of action is to the effect that the written contract terminated when the building was inclosed, December 1, 1895, by reason of Mr. Grafton's failure to give the plaintiffs written notice on or before October 1, 1895, as prescribed by the contract, and claiming a balance due to them under the contract, and upon settlement made upon the basis of the proposition between the plaintiffs and Hutter of $1,132.93, of which sum $780 was the percentage retained until the building should be completed as per contract, and $112.93 was for extra work and material furnished, and not included in the plans and specifications, and $240 for material, labor, and services furnished and rendered prior to January 31, 1896, which were reasonably worth and of the actual value of $240, making in all $1,132.93. That for a separate cause of action the...