Scheible v. Klein

• Citation: 89 Mich. 376,50 N.W. 857
• Court: Michigan Supreme Court
• Decision Date: 22 December 1891
• Parties: SCHEIBLE v. KLEIN.

50 N.W. 857

89 Mich. 376

SCHEIBLE v. KLEIN.

Supreme Court of Michigan

December 22, 1891

Error to circuit court, Wayne county, GEORGE S. HOSMER, Judge.

Action by Leo Scheible against Margaretta Klein. Judgment for plaintiff, and defendant brings error. Affirmed.

Charles Flowers, for appellant.

Atkinson, Carpenter, Brooke & Haigh, (Wm Look, of counsel,) for appellee.

LONG J.

Plaintiff brought suit in the Wayne circuit court, to recover a sum claimed to be due him under a verbal contract for the construction of a house and barn under one roof. There is no dispute as to the contract price for the completion of the buildings. It was to be $2,275. Plaintiff claimed the arrangement was to be that he was to get the money from the defendant at any time whenever he wanted it, except the last $75, for which he was to wait until the following spring. The contract was made October 6, 1887, and the buildings were to be constructed according to the plans and specifications which were drawn up by Mr. Shefferly, of Detroit. The defendant's claim upon the trial was that the plaintiff should receive at the completion of the job the sum of $2,200; the balance-$75-was to be paid in the spring following. The plaintiff entered upon the work very soon after October 6th, with a number of carpenters and other workmen. He sublet the contract for building the cellar and the foundation walls to a Mr. Dorsch. Mr. Scheible continued work upon the buildings with his men until about November 4th, when he quit, leaving them uncompleted. He claims up to this time to have put about $1,400 worth of material and labor into the buildings. From the time he commenced work until the Saturday before he quit work he had demanded no pay; but on that day he asked defendant to pay him $1,000, so that he might pay for material used, and pay his men. The defendant refused to give him this amount, claiming that she was not to pay until the buildings were completed; but on that day offered him $200, which plaintiff refused to accept. At the time the plaintiff and his men quit work upon the buildings the cellar and foundation walls had been laid, and the buildings erected and inclosed, the roof put on, some partitions set, and some part of the floorings laid. The plaintiff was not at the buildings every day during the progress of the work, and had a foreman by the name of Heideman in charge. On the trial the plaintiff contended that he quit the job because he and his men were driven away from it by Charles Klein, the son of the defendant. The defendant upon the other hand, contended upon the trial that the plaintiff and his men were not driven away from the job, but that he quit for the reason that she refused to give him the $1,000 demanded. The defendant also claimed upon the trial, and a great amount of testimony was given which tended to show the fact, that the buildings, so far as they had been constructed by the plaintiff, were not constructed in accordance with the plans and specifications drawn by Mr. Shefferly, and that much of the material used was defective; that the only controversy had between her son, Charles Klein, and the plaintiff and his men was that of plaintiff's men putting down the flooring in the kitchen, which was to be of maple, with maple boards which were worm-eaten and unfit for flooring, and not in accordance with the specifications; that Charles Klein told the workmen they must stop putting down such flooring as that, but did not order them to leave the job. The plaintiff testified that he quit work when they drove his workmen away; that all he knew of their driving his workmen away was that which was told him by Heideman, his foreman, and the other men. Mr. Heideman testified that on the day before election Charles Klein came to the house in the morning, and told them to quit work; that he told Klein he would have to see Scheible first; that he sent to Scheible, and got word from him the next day to quit work. Another workman testified that Charles Klein came there in the morning of that day, and he heard him tell the foreman: "I don't want you fellows here any more. Pick up your tools, and get out of here." That he got down from the scaffold, and Klein passed around the veranda, and said: "If you fellows don't get out of here pretty soon you will see some dead people around here yet." Another workman, by the name of Hoffman, testified that Klein came there that day and told the workmen to quit. This same fact also was testified to by a workman by the name of Cordex. This was denied by Charles Klein. It appeared upon the trial that Charles Klein was acting as the agent of the defendant in looking after the construction of these buildings. The defendant claimed that the buildings were to be finished in six or eight weeks from the time the contract was let, and that, by reason of its incomplete and unfinished state, she lost a quantity of vegetables and celery which she intended to store in the cellar. It was admitted upon the trial by the plaintiff that the buildings were not in all particulars constructed in accordance with the plans and specifications; that the cellar-wall was not built of the requisite height, and had no footings under it; and that some defects existed in the material used. Evidence was given upon the trial by the plaintiff, showing what it would cost to make the buildings correspond to the plans and specifications. Some three weeks after the plaintiff quit work on the building he sent Mr. Shefferly, who drew the plans and specifications, to defendant, to see if she woud permit the plaintiff to finish the buildings, and he testified that defendant told him she did not want the plaintiff to finish it at all. Mr. Shefferly went over again some eight or ten days after that, and offered to take the responsibility of finishing the buildings in a satisfactory manner if defendant wanted it done. This offer he made to Charles Klein, who stated that his mother was not at home; but he knew she would have nothing done that fall, as it was too late in the season. On April 17th the plaintiff received from the defendant the following letter: "Leo Scheible: You will please take notice that I shall not permit you to do any further work upon the house you commenced to build for me last fall under our agreement, for the reason that the work which was done by you was not done according to the plans and specifications, and was so poorly done, and the materials are of such poor quality, that the house is worthless for the purposes for which it was intended to be used. Your neglect to build the house in the time which you agreed to finish it has been of great damage to me, and I shall hold you responsible for said damages. I refuse to accept said house, or to pay for the same, or permit you to do any further work upon it. You can have the privilege of removing

the material which you have put into the house, and I hereby give you a license to enter upon the premises and remove the same at any time within thirty days from this date. MARGARETTA KLEIN." In reply to this the plaintiff caused a letter to be written Mrs. Klein, as follows: "Detroit April 24th, 1888. Margaretta Klein: Your conduct in relation to the building of your house has been very unjust to me throughout. I have done my best from the beginning to avoid trouble. I am still anxious to avoid a lawsuit, and with that end in view I submit for your consideration three propositions: (1) I will at once complete the building according to our agreement, and make such changes in the work already done as said agreement requires, and you shall pay me therefor $2,275; or (2) you can complete the job yourself, and pay me for the material and labor already performed and furnished, $1,675; or (3) I will submit the entire matter to the decision of three arbitrators, chosen in the usual manner. The fact that said contract has not been performed is, as you well know, due to your refusal to permit me to do what I wished to do. Now,...