Seegers v. Sprague
| Decision Date | 19 December 1975 |
| Docket Number | No. 514,514 |
| Citation | 236 N.W.2d 227,70 Wis.2d 997 |
| Parties | Eugene SEEGERS and Warren Seegers, d/b/a Seegers Brothers Excavating, Respondents, v. Donald E. SPRAGUE, Appellant. (1974). |
| Court | Wisconsin Supreme Court |
Herbert L. Usow, S.C., Milwaukee, for appellant.
John P. Buckley, Waukesha, for respondents.
The sole issue on this appeal is whether the contractor here may recover the value of goods and services rendered to a general contractor property owner.
The key paragraph in Seegers' complaint was:
That on or about the 13th day of October, 1970 at the special instance and the request of the defendant, plaintiffs agreed to furnish certain materials and labor to wit: . . .'
With a further allegation that the agreed labor and materials necessary for septic systems were furnished, demand was made for their value.
The trial court adopted the allegations of the complaint as its findings of fact. Implicit in Sprague's argument on appeal, however, is the contention that the Seegers were always subcontractors of Keller and were without privity to Sprague, contrary to the conclusion accepted by the court.
Defendant Sprague places heavy reliance on Utschig v. McClone (1962), 16 Wis.2d 506, 114 N.W.2d 854 for the proposition that a subcontractor cannot obtain direct relief against a property owner without an express contract. Utschig acknowledged that the subcontractor may avail himself of a construction lien, but his primary remedy was to proceed against the main contractor who employed him. No attempt was made to prove an express contract between Sprague and the Seegers. The lien remedy has been terminated. Further, contractor Keller is 'among the missing.' This was brought out through the testimony of Sprague. Apparently some dispute over Keller's workmanship had arisen and he had commenced suit. Sprague counterclaimed, seemingly for the costs of defective work. The absence of Keller had suspended that action. Sprague claimed, however, to have paid Keller for the septic systems.
The latter testimony is argued as defeating the Seegers' claim which is denominated by Sprague as 'unjust enrichment.' Utschig had contained language that an owner is not liable on an implied contract simply because he received subcontractors services, Id. at 506, 114 N.W.2d 854, but did not state that such theory would be unsuccessful under all circumstances. After losing at the demurrer stage, the plaintiff in Utschig argued that he had rendered extra services at the instance of the owner, but the lack of allegations on this privity contact in his complaint made this claim against demurrer unavailing.
In Superior Plumbing Co. v. Tefs (1965), 27 Wis.2d 434, 134 N.W.2d 430, an implied contract theory was also argued. The plaintiff corporation was a subcontractor and the defendant owner knew of this status and knew that he had received materials and services from it. Suit was commenced on the basis of unjust enrichment. Because the complaint as drafted admitted the possibility that the general contractor had been paid but had not in turn disbursed to the subcontractor, this court reversed an order overruling the demurrer. Underlying this approval of the demurrer was the belief that an owner was not unjustly enriched when he had paid the general contractor for all the work done.
Respondents claim to avoid this line of cases restricting unjust enrichment by denying that this theory was involved. They reiterate that the action is on quantum meruit. They also deny that the evidence establishes that they were subcontractors. Rather than argue that they were contractors with the owner, though, they concisely repeat the findings of fact of the court which merely repeated the allegations of their complaint.
In an oral decision after the trial, the court stated:
'. . .
'. . . (T)he court is satisfied that the plaintiffs have established the installation of the septic system . . . that Mr. Sprague was aware of the installation and is responsible for payment of the cost of the installation of the septic system.'
Awareness of the subcontractor and his work does not establish unjust enrichment but is an essential element of recovery. Superior Plumbing, supra, at 435, 437, 134 N.W.2d 430. The above quoted language, read in connection with the findings, indicates that the court found some privity contact but did not find that Seegers were 'in the position of contractors with Donald Sprague' as the respondents would hope.
The trial court's conclusion is inevitable from the testimony adduced. Although Sprague was acting as owner-contractor, neither he nor the Seegers were acquainted with one another. Sprague testified that the plumbing and septic system were contracted to Keller, who in turn sought out the Seegers. The fact that Sprague approved the use of the necessary larger tanks and inquired if the Seegers would be doing both properties hardly negates their subcontractor status. Any contact at all between the subcontractor and owner, on this theory, would establish a contract or implied contract relationship. The testimony of Sprague refutes the conclusion that the Seegers were contractors with him. At best there were certain contacts, as generally indicated by the court.
Quantum meruit was allowed despite the testimony of payment to Keller. The respondent apparently feels that this factor, which prevented an award under similar facts on a theory denominated as unjust enrichment, does not apply to his action. This contention is erroneous.
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