John Pritzlaff Hardware Co. v. Berghoefer

• Decision Date: 02 June 1899
• Parties: JOHN PRITZLAFF HARDWARE CO. v. BERGHOEFER ET AL.
• Court: Wisconsin Supreme Court

103 Wis. 359

79 N.W. 564

JOHN PRITZLAFF HARDWARE CO.

v.BERGHOEFER ET AL.

Supreme Court of Wisconsin.

June 2, 1899.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by the John Pritzlaff Hardware Company against Charles Berghoefer and others. The Menominee Falls Quarry Company was garnished. From a judgment for the garnishee, plaintiff and defendants appeal. Affirmed.

Plaintiff sued Berghoefer & Lupinski for a debt, and garnished the respondent. The respondent answered, setting forth the making of a contract between it and the principal defendants for the construction of a certain derrick and hoisting plant at its quarry, at an agreed price of $4,100, alleged nonperformance thereof, and denied indebtedness, except for a small amount of extras, aggregating some $90, against which it counterclaimed certain labor and payments to and for said defendants, amounting to some $136. The principal defendants interposed an answer, in which they set up the making of said contract, substantial performance thereof, with certain extras, and alleged indebtedness of the garnishee in the sum of about $4,200. After issue joined, Berghoefer & Lupinski made a voluntary assignment for the benefit of creditors to George J. Roemer, who, on his own application, was joined as a defendant. Certain subcontractors of Berghoefer & Lupinski, who had filed mechanics' liens, were interpleaded, but their rights and contentions are not material to this appeal. It appeared that March 13, 1893, the principal defendants made a proposition to erect a derrick for the garnishee, with specification of size of timbers, ropes, etc., and to erect a power house, also specified as to dimensions, size of timber, and other construction, and to place therein a boiler and engine, both specified as to dimensions, and other specified machinery. To this the garnishee responded, after some conversation, accepting a proposition to erect “one 20-ton hoisting derrick and pump, together with all necessary material and building, except as herein specified,” as follows: “The plant you propose to furnish, including all necessary buildings, is to be complete in all particulars, whether details are specifically set forth in your proposition or not, and the plant, together with all the material and labor expended upon the same, to be subject to the inspection, satisfaction, and acceptance, after such inspection, when complete and in running order, by Mr. A. H. Hadfield; the plant, in all particulars, to be turned over complete and in running order to this company on or before May 1st, 1893; when turned over and accepted as aforesaid, we to pay for the same the sum of $2,000.00, and the balance of $2,100.00 in 60 days thereafter, making the total contract price $4,100.00,”--which modified proposal was assented to by the defendants, who proceeded to work thereon. A large amount of testimony was taken, whereby it appeared that substantial completion was claimed to have been accomplished by the principal defendants some time in July, 1893, but not until September was an offer for final test made. Claim was made on the part of the defendants of acceptance by the garnishee's superintendent, Hadfield, named in the proposition as a sort of arbitrator, which was strenuously denied. The garnishee also insisted that the plant had never been completed so as to at all comply with the requirements of the contract; and it was undisputed that it had stood, from the time the defendants had left it up to the time of trial, unused by the garnishee. The referee found that the principal defendants were engaged in the business of millwrights, machinists, and builders of machinery of this class; that the proposal contained in the letter of March 13th, as modified by the letter above quoted, from the garnishee to the principal defendants, was accepted, and formed the contract between them; that the plant was not finished until September 1, 1893, but that both parties were so responsible for delays that the responsibility could not be apportioned; that on demand of the defendants, in September, Hadfield refused to attend a test, for the reason that the plant had not been constructed in accordance with the terms of the contract. And the referee further found that the plant has not been erected to the satisfaction of said Hadfield. The referee also found that the frame of the engine was broken August 10th in an attempt to operate the plant by the contractors, and that such breaking was due to the insecure foundation of the engine, and failure to safely secure and anchor the same; that the defendants have failed to erect a 20-ton hoisting derrick as called for by their contract; that the hoisting machinery is insufficient in strength, and improperly...