Miles Homes, Inc. of Wis. v. Starrett

• Court: Wisconsin Supreme Court
• Writing for the Court: FAIRCHILD
• Citation: Miles Homes, Inc. of Wis. v. Starrett, 127 N.W.2d 243, 23 Wis.2d 356 (Wis. 1964)
• Decision Date: 31 March 1964
• Parties: MILES HOMES, INC. OF WISCONSIN, a corporation, Appellant, v. LaVerne S. STARRETT, Respondent.

Page 243

127 N.W.2d 243

23 Wis.2d 356

MILES HOMES, INC. OF WISCONSIN, a corporation, Appellant, v. LaVerne S. STARRETT, Respondent.

Supreme Court of Wisconsin.

March 31, 1964.

Cletus D. Howard, Eau Claire, for appellant.

Warren Winton, Shell Lake, for respondent.

FAIRCHILD, Justice.

1. Performance of the contract. The findings of the circuit court, quoted in the statement of facts, are not against the great weight and clear preponderance of the evidence. Thus the only question is whether the court could properly conclude that the contract was not substantially performed.

The defects found by the court involved every important element of the building, its walls, doors, floor, and roof and were of a character which, under the evidence, the court could consider substantial and important. The sum of money reasonably required to rebuild the garage into compliance with the contract equaled 36 per cent of the contract price.

We have said: '* * * No mathematical rule relating to the percentage of the price, of cost of completion or of completeness can be laid down to determine substantial performance of a building contract.' ¹ In cases where this court has approved a finding of lack of substantial performance, the amount necessary for proper completion has been a smaller percentage of the contract price than the 36 per cent involved in this case. ²

This court has also said: '* * * To recover upon an uncompleted entire contract on the claim of having substantially, but not fully, complied with its terms, the contractor must have made a good-faith effort to perform and satisfied substantially the promises and agreements made by him. * * *' ³

Although the circuit court made no specific finding that Miles did not make a good-faith effort to perform, such finding may be implied from the conclusion that there was no substantial performance, and there is evidence to support it. As previously noted, certain requirements in addition to standard specifications were written into the printed form of contract. Miles did not provide its carpenter with a copy of the contract, and at least two of the deficiencies were failures to perform these special terms. After complaints were made, Miles made no substantial effort to remedy them.

The record supports the conclusion reached by the trial court, and Miles was not entitled to any lien.

2. Claim of error in receipt of evidence. Miles objected to a newspaper advertisement of a Miles double garage for a price of $888. Mr. Starrett testified that this advertisement had interested him in talking with Miles about building a garage. His counsel offered it on the theory that it tended to show that the special requirements inserted in the contract were reflected in the $382 difference between the advertised price and the contract price. The circuit court made reference to this advertisement in suggesting, in a memorandum, that the Miles employees on the job hadn't seen the contract and didn't know whether Starrett 'ordered an $888 garage or a $1250 garage.' Miles points out that it was not established that the advertised garage may not have been available in Washburn county, Wisconsin, at the price advertised in a newspaper in St. Paul, Minnesota. In any event, we find no prejudicial error.

3. Recovery of money judgment for unjust enrichment. After judgment, Miles moved for a new trial so as to recover the reasonable value of its services. Miles did not appeal from the order denying the motion, and although the motion and order have been transmitted here as part of the record, the merits thereof have not been argued by respondent Starrett so as to be before us by waiver. ⁴ Miles has no standing, as a matter of right, to seek reversal or modification of the judgment. Miles' efforts have, however, conferred a benefit upon Starrett, and, in the interest of justice, Miles should have an opportunity to offer proof upon a theory of restitution.

The applicable rule is found in Valentine v. Patrick Warren Construction Co. ⁵ dealing with...