McAlpine v. Mound

• Decision Date: 10 January 1899
• Citation: 101 Wis. 468,78 N.W. 173
• Parties: MCALPINE v. TRUSTEES OF ST. CLARA FEMALE ACADEMY OF SINSINAWA MOUND ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 468

78 N.W. 173

MCALPINE

v.TRUSTEES OF ST. CLARA FEMALE ACADEMY OF SINSINAWA MOUND ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1899.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by W. J. McAlpine against the Trustees of St. Clara Female Academy of Sinsinawa Mound and others. Judgment for defendants. Plaintiff appeals. Reversed.

Action to recover an alleged amount due on a building contract and to enforce a builder's lien therefor; also to recover damages for breach of contract to insure the building for the protection of the builder during its construction. The contract price, with some extras, was $33,377.40, payable as the work progressed, less 15 per cent., on estimates of the supervising architect, except $10,000, including the 15 per cent., to be paid within 15 days after the completion of the work upon the architect's final estimate and certificate of such completion. It was agreed, among other things, in the building contract, that the final certificate of the architect should be conclusive as between the parties, and that the proprietor, during the progress of the work, should effect insurance from time to time, as agreed upon, in the names of both parties; loss, if any, payable according to their respective interests. The complaint set forth all the allegations necessary to a lien judgment. The balance claimed as due was $15,112.31, and interest thereon from October 31, 1894. The complaint was amended by adding a cause of action for damages, it being alleged, in substance, that defendants agreed to insure the building during the progress of the work for the protection of both parties according to their respective interests; that when plaintiff had wrought $22,000 into the structure, $9,500 of which had been paid, it was agreed under the building contract that the defendants should take out so much insurance on the structure as reliable insurance companies would carry; that pursuant thereto defendants obtained $15,000 of insurance, but in breach of the agreement to protect the builder's interest, took the insurance solely in the names of the defendant trustees, ignoring the interest of plaintiff; that plaintiff never waived the insurance provision of the building contract, and did not know of the aforesaid breach of such provision on defendants' part till after the destruction of the building by fire, which occurred eight days after the policies were issued. The damages claimed were $12,500 and interest. There was a second amendment to the complaint, setting forth, among other things, a recovery of judgments by defendant trustees against the insurance companies for $12,500 with interest and costs, and claiming that plaintiff was entitled to have such proportion of such judgments as the amount unpaid on his contract for money wrought into the building up to the time of the fire bore to the total amount invested in the building, and that if he recovered on his cause of action for breach of the insurance provision of the building contract, the amount of such recovery should be decreed to be a lien on the insurance judgments, and that the defendants should be charged as trustees of such judgments for plaintiff. The defendants answered, among other things, alleging, in substance, that the $15,000 of insurance was taken out solely for their protection; that after the fire it was agreed that plaintiff, in the construction of the building, should be charged with $900 on account of a change in the plans. The answer further set forth the history of a settlement made with one of the insurance companies on a $2,500 policy for $2,179.08, and a distribution of the proceeds--$775.47 to plaintiff and $1,378.61 to defendants. It further set forth a history of efforts to recover the balance of the insurance, and counterclaimed for damages on account of defective plastering and defective heating apparatus not discovered when the architect's final certificate was given.

The court found, in substance, all the facts requisite to a lien judgment in plaintiff's favor, and further, in substance, as follows: The contract stipulated that the architect's final certificate should be conclusive between the parties as to the quality of work and material. The building was completed in all respects according to contract, and to the approval of the supervising architect, more than five days before the action was commenced, according to such architect's final estimate and certificate. “The trustees accepted the work subject to deductions named in the findings for defective work.” Waiving offsets, the amount due, with interest to May 26, 1894, is $17,526.57. It cost defendants, with interest, $397.06, to remedy defects in the plastering, and $293.86 to remedy defects in the heating apparatus not discovered when the architect's final certificate was given. Plaintiff, in constructing the building, had the benefit, including interest, of $2,218.09, property of the defendants, consisting of salvage from the building destroyed by fire, as hereafter stated. Plaintiff commenced the construction of the building under the contract soon after it was made, and when the foundation was completed the work up to that point was accepted by the trustees, the sum of $3,500 paid therefor, and the work by agreement suspended for some time. Later the work was resumed, and when, with the foundation, plaintiff had incorporated therein the sum of $22,000, and received thereon, with the $3,500, $9,500, it was destroyed by fire. After the fire plaintiff went on with his contract, agreeing to reduce the price $900 on account of an agreed change in the plans. With the $900 above mentioned, and $316 chargeable to plaintiff by agreement for some omissions, there was paid to him on the contract after the fire, during the progress of the work, and within a short time after the due date for final payment, October 31, 1894, $18,262.12. When plaintiff had expended $22,000 in constructing the first building, and received the $9,500, mentioned, thereon, the parties agreed that defendant trustees should take out insurance under the building contract for the protection of both parties, for such an amount as could be procured of reliable insurance companies. Thereupon defendants secured $15,000 of insurance, but in breach of the building contract took the same solely in the names of the trustees, wholly ignoring plaintiff's interests, which fact was not known to plaintiff till after the building was destroyed. Plaintiff never waived his rights under the insurance clause of the contract. The court further found the facts as alleged in regard to the settlement with one of the insurance companies and distribution of the proceeds, and that thereafter recovery was had by defendants on the other policies for $12,500 with interest from April 17, 1894.

On such findings of fact the court decided that defendants were entitled to offset against the sum due plaintiff on the contract the expenditures mentioned for defective plastering and heating, with interest thereon and the salvage belonging to defendant trustees, used by plaintiff, leaving a balance of $15,308.48, for which he was entitled to a lien judgment. The court further decided, in substance, that the insurance judgment should be apportioned so as to give $4,583.33 thereof, with interest from April 17, 1894, making $5,690.20, to plaintiff, and the balance to defendants, and that said $4,583.33 and interest should be decreedto be a lien on the insurance judgments, and defendant trustees trustees of such judgments to that extent for plaintiff. Judgment was rendered in accordance with such conclusions, and plaintiff appealed.

A. G. Zimmerman and Burr W. Jones, for appellant.

Bashford, Aylward & Spensley, for respondents.

MARSHALL, J. (after stating the facts).

This appeal comes up without a bill of exceptions and presents only the question of whether the trial court applied the law correctly to the facts found.

The decision below is challenged on various grounds, one of which is that defendants were not entitled to the offsets allowed for defective plastering and defective heating apparatus. As appears from the statement of facts, the building contract provided that the final certificate of the supervising architect should be conclusive between the parties as to material and quality of work,...