Manthey v. Stock

• Citation: 113 N.W. 443,133 Wis. 107
• Parties: MANTHEY v. STOCK.
• Decision Date: 15 October 1907
• Court: Wisconsin Supreme Court

133 Wis. 107

113 N.W. 443

MANTHEY

v.STOCK.

Supreme Court of Wisconsin.

Oct. 15, 1907.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by Paul E. Manthey against Kathryn M. Stock to foreclose a mechanic's lien for work in painting defendant's house. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

Action to foreclose mechanic's lien for work in painting defendant's house. Plaintiff entered into a contract to paint the outside of defendant's house for $87, to do a first-class job, including the removal of the old paint where necessary to accomplish the result. Plaintiff painted the house, but upon a considerable portion of front, especially the porch, columns, and mouldings, failed to so remove the old paint as to enable a good job, and, as a result, in a number of places there were blisters and roughness. Defendant notified plaintiff of her objections to the work, once while it was in progress, and, after its completion, refused to pay until she had opportunity to inspect and ascertain the quality of the work. Before she had done this, but after waiting several weeks, the plaintiff commenced this action. The court found as a fact that the plaintiff in good faith attempted to perform the contract, but the painting was not done in all respects as required thereby. The old paint on the columns and mouldings on one side of the house, and perhaps on some other parts, was not rubbed off, and in such places the painting was rough and blistered, and in such respects the work was not finished in a good and workmanlike manner, but that the work can be or could have been redone and completed to conform to the contract requirement for $26.10. From such facts the court concluded as law that the plaintiff substantially performed his contract and awarded him allowance of the contract price less the $26.10 allowed by way of recoupment. The complaint also stated a claim of $22 for interior painting, which was admitted by the answer, and judgment therefor with interest and costs tendered. From judgment in favor of plaintiff for both said sums, and adjudging mechanic's lien, defendant brings this appeal.Harper & McMynn, for appellant.

Friedrich, Teall & Hachbarth, for respondent.

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

Of course, the contract to paint the house was entire, and the general rule applicable that for partial performance no recovery could be had. Moritz v. Larsen, 70 Wis. 569, 36 N. W. 331;Widman v. Gay, 104 Wis. 277, 80 N. W. 450. Doubtless, it fell within the class of building contracts to which is accorded a certain relaxation of the strict rule above stated, so that a contractor who, in good-faith effort to perform, substantially satisfies his agreement, may recover the value to the owner of that which is done, although it departs in slight respects from specifications, or, without fault of the contractor, lacks absolute completeness. Taylor v. Williams, 6 Wis. 363;Malbon v. Birney, 11 Wis. 107;Laycock v. Parker, 103 Wis. 161, 168, 79 N. W. 327;Manitowoc S. B. Works v. Manitowoc G. Co., 120 Wis. 1, 97 N. W. 515;Manning v. School District, 124 Wis. 105, 102 N. W. 356. As often said, such relaxation from the strict rule governing entire contracts must be accorded with great caution. One has a right, especially in buildings, to choose for himself, to contract for something which exactly satisfies that choice, and not to be compelled to receive something else. In the matter of buildings and their decoration, as much as in any conceivable field, mere taste or preference approaching almost to whim may be controlling with the owner, and therefore of the very substance of the contract, so that even trifling variations may be inconsistent with that substantial performance on which should be predicated liability to pay. Of course, mere incompleteness, in respects easy to...