LaYcock v. Parker

• Citation: 79 N.W. 327,103 Wis. 161
• Parties: LAYCOCK v. PARKER ET AL.
• Decision Date: 16 May 1899
• Court: United States State Supreme Court of Wisconsin

103 Wis. 161

79 N.W. 327

LAYCOCK

v.PARKER ET AL.

Supreme Court of Wisconsin.

May 16, 1899.

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

Action by Henry Laycock against Anna E. Parker and others, impleaded, etc., to foreclose a mechanic's lien. From a judgment in favor of plaintiff, defendant Anna E. Parker appeals. Modified and affirmed.

On June 24, 1893, the plaintiff and another entered into a building contract with the defendant Anna E. Parker to erect a store and office building in the city of Eau Claire upon premises belonging to her. The contract and specifications were prepared by architects, and were in great detail. Among other things, it was provided that the work should be done under the direction and to the satisfaction of the architects named; that it should be completed by September 15, 1893; and that alterations should only be made upon written order of the architects, and, when so made, the value of the work added or omitted should be computed by the architects, and the amounts so ascertained added to or deducted from the contract price, with right of arbitration in case of dispute. This section was supplemented by the specifications which provided that the owner should be at liberty to make such changes as she should deem necessary without vitiating the contract; that proper allowance should be made at the time of such changes or at settlement; that the architects should figure thereon, and their estimates should be binding upon all parties; that in case of obstruction or delay from various causes, including acts of the owner, the time of completion should be extended for a period equivalent to the time lost; that the contract price should be $18,000, to be paid in certain specified installments upon certificates furnished by the architects to the owner; and that no certificate, except the final one, should be considered to be an acceptance of defective work. Other provisions in detail may best be stated in the course of the opinion. The work proceeded, the two contractors, as between themselves, dividing the different kinds thereof. Various modifications and changes were made by direction of the defendant E. H. Parker, husband of the defendant Anna E., who, the court found, in all things was authorized to and did act as her agent. The building was found by the court to have been substantially completed about the 26th day of January, 1894, and the last work thereon was done May 31, 1894; the plaintiff meanwhile having paid $12,995.01. It was also found by the court that at the final completion of the building, as claimed by the plaintiff, E. H. Parker and the architect carefully inspected the same, and, at the completion of such inspection, Parker, in the presence of the architect, after certain small omissions had been pointed out, and their remedy arranged for, declared himself fully satisfied, and that defendant accepted the building as completed, and occupied same. It is further found that the stipulations of the contract with reference to the issue of certificates by the architects as a condition precedent to payment, and the fixing of the value of changes by computation of the architects, as well as the ordering them in writing, had been waived by the parties. It was also found that such certificates had not been issued, and that the architects at the time of the trial were dissatisfied with the performance of the contract, but that there was no evidence from which to find that they were dissatisfied at the time of the completion of the work; and the court expressly refused to find that the dissatisfaction of the architects was honest or in good faith. An opinion filed and included in the record serves to give such refusal very much the effect of an affirmative finding that such dissatisfaction was dishonest, and not in good faith. After suit had been commenced, a computation in great detail was made of all omissions and changes by E. H. Parker and a mechanic employed by him, which computation was in form adopted by the architects, and their signatures affixed thereto, as to which transaction it is found that the computations were not made by either of the architects, and that they did not act honestly or in good faith in signing such computations of the amounts which should be deducted for omissions and added for extras, and that the amounts as certified to by them are grossly incorrect and unjust, and that the parties after the completion of the work, and before commencement of suit, entered into negotiations as to the amount due, and in the course of their attempted settlement full statements of account were presented, and items examined, amounts were proposed on each side in full settlement of all matters between them, and that the amounts which should be deemed extras, and the amounts which should be deducted for omissions, were agreed upon and settled without intimation of any incompleteness or omission to be supplied. E. H. Parker was in continual attendance throughout the construction of said building. He occupied an office across the street, from which he could and did observe the work continuously, and, in addition, was upon the premises, inspecting all the details of the work almost daily, and often several times per day. He showed upon the trial full understanding and familiarity with the plans and specifications, and with the methods of doing the various kinds of work, and ability to make computations of extras and omissions. After the completion of the work, the other contractor assigned the balance due him, together with his rights to a lien, to the plaintiff, of which notice was given the owner in due form, and the petition for lien was duly filed, and suit commenced within six months after May 31st. The court allowed the plaintiff for balance due upon his contract $5,004.99, and for extras $1,757.23, and allowed the defendant upon counterclaim for omissions and substitutions made by direction of E. H. Parker, the agent, $469.39, and allowed her upon counterclaim by way of damages for delay in completion of the building, and for use of the heating plant, $283.41, resulting in a net finding in favor of the plaintiff of $6,009.42, upon which interest was allowed from the commencement of the suit, and adjudged a lien therefor. The form of the judgment was a personal judgment against the defendant Anna E. Parker, and an adjudication that the plaintiff have a lien therefor upon the premises, and that the same be sold in the manner provided by law, and the proceeds, after satisfying plaintiff's judgment, be brought into court to abide its further order. The complaint contained no prayer for a personal judgment, and the judgment did not contain any provisions for ascertaining a deficiency upon the sale or for rendering personal judgment therefor.H. H. Hayden, for appellant.

Frawley, Bundy & Wilcox, for respondent.

DODGE, J. (after stating the facts).

1. Certain of the findings are very sweeping in their effect upon the rights of the parties, and from their correctness or incorrectness would result very different rules of law in the decision. We find no clear preponderance of the evidence against the finding of the court that the defendant E. H. Parker was from beginning to end the agent of the defendant Anna E. Parker, his wife, in regard to all matters involved in the construction of this building, and in the making of modifications or carrying out of the contract. Where we so concur with the court below no good purpose can be served by a discussion of the evidence here. It is sufficient to state such concurrence. It may, however, be said generally that the conduct of the husband and wife is such as to raise an almost irresistible inference that she had full knowledge that he was assuming to act for her, and, if so, his conduct in so doing, and her silence and nonattendance, are the most cogent evidence as to the actual understanding between them that he should take full charge. Neither do we find any preponderance of evidence against the finding of the court that the provisions of the contract were waived by both parties, requiring written orders of the architects in advance for changes, and requiring the certificates of the architects as a prerequisite of paymentson the contract, and with reference to the fixing of the value of changes and omissions by the architects. Nor can we feel justified in disturbing the findings of the court as to the unfairness, dishonesty, and gross incorrectness of the acts of the architects in certifying to certain pretended computations some six months after the suit was commenced, or in then declaring their dissatisfaction with the work done. On the other hand, we think it must be understood that the finding of a declaration of satisfaction made by the defendant E. H. Parker, in company with his architect, after a full examination of the building, in the light of the other evidence, constituted a finding that the defendant and the architect were satisfied, and accepted the building as a substantial compliance with the contract, which finding has sufficient support in the evidence. We also find abundant support in the evidence for the further general findings that all omissions of material or work required by the contract, which did not occur upon the order of the defendant, occurred inadvertently and unintentionally; that the contractors acted honestly and in good faith, and made no willful departure from the plans and specifications; that neither architects nor defendants, though having full knowledge, made any complaint about the way the work was being done; that before the commencement of the action the contractors fully and substantially completed their contract in substantial compliance with the terms thereof, and constructed a good and suitable building, which was taken possession of in January, 1894, and has ever since been occupied for the purposes for which it was erected, and that it is...