Laycock v. Moon

• Decision Date: 28 September 1897
• Citation: 72 N.W. 372,97 Wis. 59
• Parties: LAYCOCK v. MOON.
• Court: Wisconsin Supreme Court

97 Wis. 59

72 N.W. 372

LAYCOCK

v.MOON.

Supreme Court of Wisconsin.

Sept. 28, 1897.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Henry Laycock against D. R. Moon. From a judgment for plaintiff, defendant appeals. Affirmed.

The action is to recover $750 and interest, a balance claimed to be due to the plaintiff for doing the stone and brick work of a brick barn which the defendant built upon his premises, in the city of Eau Claire, in the summer of the year 1890, and $75.20 for the construction of a cistern. There was no defense against the smaller claim. The defense against the larger claim was, generally, that the work was negligently and unskillfully done; that unsuitable materials were used; that in several respects there was failure to conform to the contract; and that the work stipulated by the contract had never been fully performed. More specifically, it was complained that unsuitable stones had been used in the footing course of the foundation, which had caused the building to settle unevenly, and cause cracks in the brick walls; that the walls had not been “slushed” with mortar; that the walls had not been “pointed” with mortar; that the walls had not been “cleaned,” and had been neither oiled nor stained with “brick stain.” The contract, among other things, provided that the plaintiff would make “a complete and workmanlike job, according to the drawing and spirit of the specifications, to the entire satisfaction of the proprietor and architect, who will have full power to reject all work and materials not the best of the kind specified, and, should such materials or labor be introduced, it must be removed and replaced, entirely at the contractor's expense.” It provides that the architect C. L. Brown shall superintend the construction of the building, and that “all questions arising must be submitted to the architect, whose decision shall be final,” and that “the whole of the work is to be inspected as it goes on, and accepted by the owner and architect before a final settlement is made”; also, “stone and brick work to be thoroughly cleaned down after completion, and to have one coat of linseed oil or brick stain, as the owner may decide.” The work was, in fact, done under the supervision of the architect named, and inspected by him daily, and by the defendant frequently, as the work progressed. In some instances, materials which had been used were rejected, after such inspection, and removed, and replaced by others. When the work was in substantial completion, the foundation was not pointed nor the walls cleaned, because the stagings of the carpenters were in the way. The walls were left in this condition until the next spring or summer, when the plaintiff sent one Alexander Wirt to do the pointing and cleaning. He pointed the foundation walls on two sides of the building, and so far as the defendant directed or desired it to be done, and cleaned off the walls. The walls were neither oiled nor...