J. G. Wagner Co. v. Cawker

• Decision Date: 07 January 1902
• Citation: 88 N.W. 599,112 Wis. 532
• Parties: J. G. WAGNER CO. v. CAWKER ET AL.
• Court: Wisconsin Supreme Court

112 Wis. 532

88 N.W. 599

J. G. WAGNER CO.

v.CAWKER ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1902.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action on a building contract by the J. G. Wagner Company against Sarah M. Cawker, executrix of E. Harrison Cawker, deceased, and others. Judgment for plaintiff, and defendants appeal. Reversed.

On June 16, 1897, the plaintiff entered into a written contract with the defendants to furnish and set up the steel and iron to be used in the construction of a building to be erected by the defendants in the city of Milwaukee for the sum of $16,458. The work was to be done under the direction and to the satisfaction of Howland Russell, the architect. The entire framework was to be completed by October 9, 1897, and all work for the building by November 15th, following. No alterations were to be made in the work shown by the drawings and specifications except upon the written order of the architect. In case the building was not completed at the time specified it was agreed that the owner was to be allowed the sum of $50 per day, as liquidated damages, for every day after that date the work remained unfinished. It was further provided that, should the contractor be obstructed or delayed in the prosecution or completion of his work by the act, neglect, delay, or default of the owner, architect, or any other contractor, etc., the time fixed for the completion of the building should be extended for a period equivalent to the time so lost; “but no such allowance shall be made unless a claim therefor is presented in writing to the architect within 24 hours of the occurrence of such delay. The duration of such extension shall be certified by the architect;” but an appeal from his decision might be made to arbitration. Payments were to be made upon written certificates of the architect to the effect that such payments had become due. The contract contained other provisions, not material to this litigation. Plaintiff entered upon the work, and, not being paid in full, brings this action to recover the balance claimed to be due. The complaint, among other things, alleged that plaintiff had completed the contract; that defendants had failed to pay the balance due, of $2,808; that the architect, without any cause, refused to issue a certificate therefor, as required by the contract; that the defendants had conspired and colluded with the architect, and instigated him to withhold said certificate, to prevent plaintiff from securing its just demands. A second cause of action was for extra work done on the building, amounting to $343.16, and contained similar allegations as to the architect's withholding a certificate of such extras. As to the first cause of action, the answer admitted the contract, denied performance and all allegations of collusion, and alleged payment of all certificates of the architect which had been presented. To the claim for extras the defendants set up the clause in the contract as to the requirement of a written order from the architect, and alleged that, if extra work was done, it was without such order. For a counterclaim the defendants set up the clause in the contract as to completion of the work, and alleged that plaintiff did not complete the building until more than 32 days after the time stipulated. Damages in the sum of $1,600 were claimed. In a reply the plaintiff alleged that the delay mentioned was caused by defendants and the architect not furnishing drawings and data to enable it to prosecute the work, by contractors of other parts of the building, and by changes and alterations in the building made by defendants; that no claim in writing for such delay was presented to the architect, because the defendants requested the delay, and promised plaintiff that it would not be necessary to secure any certificate of extension from the architect; also that errors were discovered in the drawings and stipulations, upon the discovery of which work was to stop, and the work was thereby delayed more than 32 days after November 15, 1897. On the trial it was shown that the architect delivered to plaintiff the following final certificate: “Certificate. $1,551.16. Milwaukee, June 11, 1898. To Estate of E. Harrison Cawker: This is to certify that the J. G. Wagner Co., contractor for the steel and iron work of the ‘Cawker Bldgs.,’ is entitled to a payment of fifteen hundred and fifty-one 16/100 dollars, by the terms of contract, dated July 10, 1897. Howland Russell, Architect. Contract price: $16,458.00. Bal. brought forward: $2,808.00. Remarks: Extra, $343.16; this certificate, $1,551.16; balance, $1,600.00, forfeited by 32 days' delay, at $50.00 per day.” Plaintiff protested against the allowance for delay. He presented the certificate for payment. The defendants offered to pay if he would receipt in full for all demands. This the plaintiff declined to do. Testimony was given by plaintiff tending to show that the architect had waived a written order as to extra work and the written notice regarding the claim for delay in the work, required by the contract. The following special verdict was rendered: “First: Did the plaintiff complete and furnish all the work and materials called for by its contract with the defendants? A. (by the Court) Yes. Second. What portion of the price named in the contract remains unpaid, and what is the interest thereon at the rate of six per cent. per annum from time the work was commenced? A. Balance unpaid on contract, $2,808.00; interest to date, $486.00,--total, $3,294.00. Third: Did the plaintiff, at the defendants' request, furnish certain extra work and materials in the construction of the Cawker Building, and what was the value thereof, with interest thereon at the rate of six per cent. per annum from the completion of the work? A. (by the Court) Yes. Value of extras, $343.16; interest thereon, $55.85,--total, $399.01. Fourth: Did the defendants waive that provision of the con tract requiring that no alteration should be made on the work except on the written order of the architect? A. (by the Court) Yes. Fifth: Was the architect, Howland Russell, actuated by fraud, collusion with the owner, or bad faith in rendering the decision embodied in the certificate which has been offered in evidence as to the amount due the plaintiff upon the contract? A. Yes. Sixth: If you answer the first question in the affirmative, did the defendants waive that provision of the contract requiring that no allowance or extension of time should be given for delays, unless the claim therefor should be presented to the architect within twenty-four hours of the occurrence of the delay? A. Yes. Seventh: If you answer the fifth question in the affirmative, when did the plaintiff complete that portion of the work comprised within the contract? A. November 27, 1897. Eighth: If you answer the fifth question in the affirmative, then did the defendants, prior to the 15th day of November, 1897, delay the plaintiff in the prosecution of its contract work, and, if so, how long? A. Yes, 56 days.” Plaintiff moved for judgment, and defendants to set aside the verdict and for a new trial. Plaintiff's motion was granted, and judgment was entered in its favor, from which defendants take this appeal.

Ryan, Ogden & Bottum, for appellants.

Nath, Pereles & Sons, for respondent.

BARDEEN, J. (after stating the facts).

One important stipulation in the written contract was that no alterations should be made in the work shown or described by the drawings and specifications except upon the written order of the architect. It seems to have been assumed on the trial that this stipulation was sufficiently broad to cover extra work, and was of such a character as that the architect might waive its provisions. There is no dispute but that extra work was performed, and the amount thereof was determined by the architect, and included in the final certificate. It is not claimed that such work was done upon the written order of the architect, but it is claimed that defendants waived that provision of the contract. Whether the architect had any power to waive contract provisions of that kind is very doubtful; but, defendants having consented that the court should answer question 4 of the verdict without submission of the fact to the jury, that question is not now before us for decision. Permitting the court to answer that finding in the affirmative precludes the defendant from raising any objection to the finding at this time.

A much more serious question arises regarding the answer to the sixth question. There is absolutely no evidence in the case that the defendants have personally done anything from which a waiver of the requirement regarding making claim for an extension of time can be argued. The contract provides that the plaintiff...