Mindeman v. Douville

• Decision Date: 17 December 1901
• Citation: 112 Wis. 413,88 N.W. 299
• Parties: MINDEMAN ET AL. v. DOUVILLE ET AL.
• Court: Wisconsin Supreme Court

112 Wis. 413

88 N.W. 299

MINDEMAN ET AL.

v.DOUVILLE ET AL.

Supreme Court of Wisconsin.

Dec. 17, 1901.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by John Mindeman and others against Frank C. Douville and others. From an order overruling defendants' demurrers to the complaint, they appeal. Affirmed.

Appeal by defendants from order overruling demurrers to the complaint. The complaint is for the enforcement of mechanics' liens, and alleges liability for balance of contract price upon two written contracts for different portions of defendants' building. The contracts are not set out in full, but the portion of the complaint which leads to the demurrers is the following: “That the plaintiff has fully performed all the conditions precedent of said contract on his part to be done and performed, except the obtaining of architects' certificates or estimates for the amount due; that he has demanded the said certificates from Kyrle S. Evans, the architect named in said contract, but the said Kyrle S. Evans has refused to give said certificates to the plaintiff, George Mindeman, and that the reason of such refusal, the plaintiff is informed and believes, is that the said Kyrle S. Evans has not been employed by the said Eugene E. Douville to issue estimates upon the said building, and has been instructed by the said defendant Eugene E. Douville not to issue estimates upon the said building for any amount whatever, and has been prevented by the said defendant Eugene E. Douville from issuing the said certificates.”

C. A. Koeffer, Jr., for appellants.

Charles J. Weaver, for respondents.

DODGE, J. (after stating the facts).

That the architect's certificate of completion is an essential prerequisite to recovery by the builder, if his contract so provides, is most firmly settled in this state (Hudson v. McCartney, 33 Wis. 331;Boden v. Maher, 95 Wis. 65, 69 N. W. 980;McAlpine v. Trustees, 101 Wis. 468, 78 N. W. 173;John Pritzlaff H. Co. v. Berghoefer, 103 Wis. 359, 364, 79 N. W. 564;Coorsen v. Ziehl, 103 Wis. 381, 79 N. W. 562;Power Co. v. Nash, 109 Wis. 490, 85 N. W. 485); but that there may be excuses for the nonperformance of that prerequisite is equally well established by several of the cases above cited. Such excuse may arise from the misconduct of the architect, as defined in those cases, but more obviously and certainly from conduct of the other party to the contract either waiving or preventing the obtaining of...