Olbert v. Ede
| Decision Date | 27 February 1968 |
| Citation | 156 N.W.2d 422,38 Wis.2d 240 |
| Parties | Curtis L. OLBERT, Respondent, v. Aspen A. EDE, Appellant. |
| Court | Wisconsin Supreme Court |
Edwin Larkin, Mondovi, for appellant.
Randall E. Morey, Whelan, Morey & Morey, Mondovi, for respondent.
A finding of fact by the trial court will not be set aside unless it is contrary to the great weight and clear preponderance of the evidence. Mitchell v. Western Casualty & Surety Co. (1966), 30 Wis.2d 419, 141 N.W.2d 212; Sid Grinker Co. v. Craighead (1966), 33 Wis.2d 42, 146 N.W.2d 478. The crucial finding in the instant case is that the original plans and specifications were abandoned to the extent that it is impossible to trace the original contract in the work done.
The respondent in his brief enumerates 69 changes, many of which are of a substantial nature, that represent marked deviations from the original contract. The record is rife with alterations that were made while the work progressed. In addition to the work and labor claimed by appellant which exceed the original contract price by $2,751.82, it is acknowledged that the owner paid approximately $7,000.00 to others for labor and materials in connection with the home construction.
The respondent was asked these questions and gave these answers:
'Q. Was the house that was built, built in such a manner as to vary a little from those plans?
A. You mean the size?
Q. Any feature of the house.
A. That isn't the house that was built.
Q. A different house than those shown on the plans was built, wasn't it?
A. That's right. The basement was the same as on the plans, I think.'
In view of this undisputed evidence, it is apparent that the house that was built was very different than the one originally contemplated. The finding that the original plans and specifications were abandoned, to the extent that it was impossible to trace the contract in the work done, was not contrary to the great weight and clear preponderance of the evidence. The court's finding must be sustained.
A builder can recover from the owner for the reasonable value of extras furnished at the owner's request. Hammersberg v. Nelson (1937), 224 Wis. 403, 407, 272 N.W. 366. That principle is applicable when the original contract has been followed, and when there have been additions or substitutions that can be harmonized as additions to the original contract, the amount to be recovered in such a case is the contract price less deletions plus the cost of the extras.
In the instant case a different standard of compensation must be used. Herein it is apparent that the owner, with the acquiescence of the contractor, insisted on great variances from the original plan. In addition, the owner's conduct in ordering material and labor from third parties is probative of his desire to proceed with construction not contemplated by the contract. So substantial were these changes that the owner testified that the house as built was not the one specified, although he 'thought' the dimensions of the basement were the same.
Under these circumstances the contractor's compensation is to be measured though there were no contract at all. The general rule, which we adopt, states:
'If there is no special argeement, the builder's compensation is the...
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...will see fit to affirm without opinion, and upon motion, impose double costs for these derelictions.' However, in Olbert v. Ede (1968), 38 Wis.2d 240, 244, 156 N.W.2d 422, this court '. . . Additional costs or penalties are to be imposed only 'Where it satisfactorily appears that the rules ......
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...633 (1967). Lack of substantial compliance was equated with failure to comply with the terms of Rule 251.38(2) in Olbert v. Ede, 38 Wis.2d 240, 245, 156 N.W.2d 422 (1968). There is nothing in this case to indicate that the rules have been flagrantly disregarded or that there was a lack of a......
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