Manning v. Sch. Dist. No. 6 of Ft. Atkinson

• Decision Date: 31 January 1905
• Parties: MANNING v. SCHOOL DIST. NO. 6 OF FT. ATKINSON.
• Court: Wisconsin Supreme Court

124 Wis. 84

102 N.W. 356

MANNING

v.SCHOOL DIST. NO. 6 OF FT. ATKINSON.

Supreme Court of Wisconsin.

Jan. 31, 1905.

Syllabus by the Judge.

1. Failure by one to perform his contract with another entitling that other to a modification or extinguishment of the contract price may be pleaded as a defense or counterclaim.

2. In determining whether a complaint states a cause of action the question is not whether the pleader used the most appropriate language to that end, but whether the language used will permit reasonably of a construction sustaining the intent of the pleader in view of the rule that all facts necessary thereto not expressly alleged which can reasonably be inferred from what is stated are to be regarded as properly pleaded.

3. It being reasonably plain that the defendant intended to plead a counterclaim, matter stated in the answer outside that portion devoted specially to the counterclaim or stated in the complaint, if referred to for that purpose directly or circumstantially is to be regarded as incorporated in the statement of the counterclaim.

4. In applying the last rule where the plaintiff indicates that he considers the facts necessary to the counterclaim not stated in that portion of the answer specifically devoted thereto as alleged by reference directly or circumstantially to other portions of the answer or to statements in the complaint by replying, that view should prevail unless the language of the counterclaim as a whole will clearly not reasonably admit thereof.

5. It is error to strike out opinion evidence of an expert at the close of a case on the side offering such evidence, upon the ground that the detail facts upon which it was based were not given, no effort having been made by cross-examination to elicit testimony in that regard, and especially is that so where no objection is made because of such want of detail.

6. Statements of an employé as to the character of his principal's work, not made while he is authorized to represent the principal in respect thereto, are not proper evidence against such principal.

7. The report of an expert to the one employing him, though communicated to the opposite party, is not admissible as evidence in favor of the employer.

8. If a person can testify to a matter by reference to a memorandum, made by him at or about the time of the occurrence and remembered by him to have been then known to be correctly made, he may do so, though at the time of testifying he cannot, by reference to the memorandum, recall such matter to mind so as to testify from present remembrance; and the memorandum itself may also be properly received as a part of his evidence.

9. It is error to instruct that the measure of the contractor's right to recover on a contract which he has in good faith substantially performed is the contract price.

10. If one only substantially performs his contract to improve another's property, the circumstances being such that it would be impracticable for such other to reject the incomplete work, that one can, nevertheless, if his failure to fully perform is not characterized by bad faith, recover on the contract, but the measure of his recovery is the contract price less such deductions therefrom as will measure the difference between full and partial performance.

11. The right to recover on a contract for substantial performance does not involve any judicial modification of the contract to the prejudice of the proprietor. While he may be made to respond thereon for substantial performance he is entitled to such reduction from the contract price as will, in effect, render to him that full performance called for by the contract.

12. The rule for measuring the modification of the contract price so as to account for the difference between substantial and full performance is this: So far as the imperfections can be remedied without any great sacrifice of work and material wrought into the subject of the contract, the reasonable cost of actually making good such defects is to be allowed, and so far as it is otherwise the proper allowance is the diminished value of the subject of the contract by reason thereof.

13. When one contracts with another to perform a stipulated service for such other for a stipulated price, the sum to be paid when the work shall be satisfactorily done, such other is the one to be satisfied, and until the happening of that event, so long as he acts reasonably, the contract price is not collectible.

14. The rule which permits of a recovery on a contract for substantial performance thereof, without any other acceptance of the results than such as is unavoidable, does not apply to mere partial performance.

15. Where the property and labor of a person has been wrought into the property of another resulting in a good-faith part performance of a contract, but not substantial performance thereof, the circumstances being such that the former situation cannot practicably be restored, that other is not liable at all to the contractor merely because he is enriched to the latter's loss.

16. To make one liable on a contract under the circumstances stated in the last rule, there must be the additional element of acceptance of the work other than that appropriation and use thereof necessarily involved in the use of the property of which it forms a part.

17. If one sues on a contract, he cannot recover quantum meruit without an amendment to the complaint setting forth a cause of action of that character.

18. In case of mere part performance of a contract and such acceptance of the result as to entitle the contractor to recover quantum meruit, the measure of his recovery is the reasonable value of the part performance upon a quantum meruit pro rata basis, i. e. on the basis of the value of full performance at the contract rate.

19. Where one of the issues to be determined by a jury is whether the plaintiff substantially performed his contract, they should be made to understand what constitutes such performance.

20. Substantial performance means full performance in all those essentials necessary to the accomplishment of the entire purpose of the contract. Failure as to any of such essentials, whether in good faith or bad faith, or any defect so essential as that the object which the parties intended to accomplish, to have a specified amount of work performed in a particular manner is not accomplished, is inconsistent with substantial performance.

21. That substantial perfermance of a contract involving the incorporation of the labor and material of the contractor into the property of another so that the former situation cannot be restored, but failing to accomplish substantial performance, renders such other liable to the contractor to the amount of such other's enrichment to the contractor's loss, is not a part of our judicial system.

Appeal from Circuit Court, Jefferson County; B. F. Dunwiddie, Judge.

Action by E. J. Manning against School District No. 6 of Ft. Atkinson. Judgment for plaintiff. Defendant appeals. Reversed.

Action to recover on a contract for installing a heating and ventilating plant in defendant's school building.

Plaintiff bound himself to remove the hotair furnace in the building and place therein instead a steam boiler in working order of capacity sufficient, without waste of fuel, for a complete system of heating and ventilation for the building; to furnish and locate radiators to heat the building in connection with the ventilation to a temperature of 70 degrees during the coldest weather; to make such changes as to furnish fresh air tempered to 70 degrees to all rooms, and change the air therein at least three times an hour; to so locate the cold-air registers as to greatly improve the foul-air system of ventilation in use in the building; to furnish standard material, and to do the work in a neat and workmanlike manner, using such parts of the old heating and ventilating apparatus as could be advantageously incorporated in the new plant, guarantying to leave the dry-closet system in use unimpaired, and to complete the whole by September 20, 1902. In consideration thereof defendant bound itself to pay plaintiff $500, upon the material for the work being delivered on the ground, $1,000, when the plant was completed, tested and found to do its work satisfactorily and in accordance with the contract, “the balance of $525, to be held by the School District Board until there has been sufficient cold weather to see that the plant is satisfactory and will do the work” as agreed.

The complaint was appropriate to recover the final payment. Defendant answered, among other things, as follows: $1,500, was paid to the plaintiff, the last payment of $500, being with the express understanding that the right was reserved to determine, upon the weather being suitable for that purpose, by a proper test whether the plant was a success and in compliance with the contract. Subsequently when there was such weather, it was demonstrated that the building could not be warmed according to the terms of the contract and that the plant was not satisfactory. The boiler proved to be too small, neither direct or indirect radiators were sufficient; they were not of the proper size nor properly located; some of the pipes were too small and not properly arranged or covered; the distribution of heat was not such as to furnish the proper amount thereof to each room; the plant was not susceptible of being operated without waste of fuel; the ventilation of the building proved to be inadequate; the air in the rooms was not changed nor the foul air removed therefrom as agreed, and the dry-closet system was materially injured. “All of these facts were pleaded as a defense, followed with this. Defendant further says that to make such heating plant adequate to heat such building and ventilate the same in accordance with said contract, will require a large expenditure of money and defendant alleges on information and belief that the...