Kunz v. Boll

• Decision Date: 03 June 1909
• Parties: KUNZ ET AL. v. BOLL ET AL.
• Court: Wisconsin Supreme Court

140 Wis. 69

121 N.W. 601

KUNZ ET AL.

v.BOLL ET AL.

Supreme Court of Wisconsin.

June 3, 1909.

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Action by Louis Kunz and others against George Boll and others. Judgment for plaintiffs for insufficient relief, and plaintiffs and part of the defendants appeal. Affirmed on plaintiffs' appeal, and reversed on defendants' appeal, and remanded, with directions to dismiss the complaint.

The plaintiffs had a contract with the nominal defendant, Boll, for the construction by the latter of a certain building and payment by the plaintiffs for the completed building of $18,360, “all payments to be on certificates of said architect as the work progresses, to wit: $4,000 on completion of foundation; $3,000 on completion of first story; $3,000 on completion of second story; $3,000 on completion of third story; $3,000 on completion of building; and balance 60 days thereafter, reserving 15 per cent. of each estimate until final certificate is issued.” The defendants other than Boll were a copartnership engaged in business as a bonding company, and in that capacity, for a compensation of $50 paid by Boll, gave a bond in the penal sum of $5,000 to the plaintiffs conditioned that Boll “shall well and truly furnish all the material and labor to be used and employed in the erection of a certain brewery building” according to the aforesaid contract. Boll completed the building September 20, 1905, prior to which time there had been paid him a total of $15,100, in various sums, much of it before any certificates were given by the architect; but whether, as to some early payments, before the work had progressed to the prescribed stage, does not appear. On that day the contractor and the plaintiffs, together with the architect, had an accounting, ascertained that extra work had been done to the amount of $979.27, and there was then issued a certificate for the balance of $4,239.27. Lienable claims for labor and materials existed, which plaintiffs were obliged to pay, to an amount in excess of this balance. This action was brought to recover an alleged excess of such claims of about $2,700. The court made certain deductions of about $2,000 and rendered judgment against the sureties for $768 and interest and costs. From the whole of this judgment the defendant sureties appeal, and from the disallowance of the $2,010.58 the plaintiffs appeal.

Timlin and Kerwin, JJ., dissenting.

Nash & Nash, for plaintiffs.

Hougen & Brady, for defendants.

DODGE, J. (after stating the facts as above).

Among the defenses interposed was that the owner and the principal contractor had modified the contract to the prejudice and consequent discharge of the sureties by paying large amounts of money thereon before the same was due according to its terms. This was supported by a showing that in the earlier stages of the work large amounts had been paid without any formal certificate of the architect; but the evidence is not so clear that they were paid before the money was earned according to the provisions of the contract, and there might well be doubt whether they were effective to release the sureties under the rule on the subject declared in Madison v. American Sanitary Engineering Company, 118 Wis. 480, 95 N. W. 1097. It was made to appear conclusively, however, and indeed declared by the findings, that the building was not completed until September 20th, and that as early as June 9th there had been paid to the contractor the sum of $15,100, while by the express terms of the contract only $13,000 was to be paid to him prior to the final completion of the contract. The efficacy of substantial advance payments upon...