Kretschmar v. Gross

• Decision Date: 07 December 1900
• Citation: 108 Wis. 396,84 N.W. 429
• Parties: KRETSCHMAR v. GROSS ET AL.
• Court: Wisconsin Supreme Court

108 Wis. 396

84 N.W. 429

KRETSCHMAR

v.GROSS ET AL.

Supreme Court of Wisconsin.

Dec. 7, 1900.

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

Action by Louis Kretschmar against William Gross, Julius Bruss, and others. From a judgment in favor of the defendants, plaintiff appeals. Reversed.

This is an action on a contract of guaranty accompanying a building contract. In 1892 and 1893 the plaintiff, Kretschmar, as owner, erected a building upon certain lots owned by him in the city of Milwaukee, costing $11,500. The defendant Gross was the contractor for the carpenter work and hardware in said building, at the price of $3,733. His contract was in writing, and the defendants Bruss and Wollaeger, as sureties, signed the instrument of guaranty attached to the building contract, by which they guarantied the faithful performance of said contract by Gross, and agreed to indemnify and save harmless the plaintiff against any liabilities, judgments, and mechanics' liens, costs, and expenses which might come against the plaintiff in consequence of the letting of said contract to Gross, or result from carelessness or neglect of Gross or his employés. This action was brought to recover of Gross and his said sureties the amount of certain subcontractors' liens and the costs of foreclosing the same, which Kretschmar had been obliged to pay on account of the failure of Gross to pay them. The defense of the sureties, Bruss and Wollaeger, was that material changes had been made in the plans and specifications and in the building, by reason of which the sureties were discharged. The action was tried by the court. There is no bill of exceptions. The court, after finding the execution of the building contract and the contract of guaranty, found that the building contract contained the following provision: “That in case any alterations should hereafter be made by order of the party of the second part, or by direction of the said superintendent, by varying from the plans or specifications, either by adding thereto or diminishing therefrom, or otherwise however, such alterations shall not vacate the contract hereby entered into, but such additions and deductions shall be estimated by said superintendent at their proper value, and added to, or deducted from, the gross amount to be paid as above mentioned; provided, however, that no claim shall be recognized or allowance made unless the order for such shall be given in writing, and that no alteration shall operate to extend the time hereinbefore fixed, nor render void the contract for the completion of said work and the furnishing of said materials.” The court further found that the contractor, Gross, completed his contract, but failed and neglected to pay certain subcontractors and material men, and that said subcontractors and material men thereafter foreclosed mechanics' liens upon said building, which liens amounted in all, with the necessary costs and expenses, to the sum of $2,274.08; that the defendants Gross, Bruss, and Wollaeger refused to defend said action, though the defendant duly tendered them the right to defend; and that the plaintiff was obliged to expend the said...