Tetz v. Butterfield

• Decision Date: 07 February 1882
• Citation: 54 Wis. 242,11 N.W. 531
• Parties: TETZ v. BUTTERFIELD.
• Court: Wisconsin Supreme Court

54 Wis. 242

11 N.W. 531

TETZ

v.BUTTERFIELD.

Supreme Court of Wisconsin.

Filed February 7, 1882.

Appeal from circuit court, Milwaukee county.

Austin & Runkel, for respondent.

Geo. B. Goodwin, for appellant.

TAYLOR, J.

This action was brought to recover a balance alleged to be due to the plaintiff on a written contract for building a house for the defendant, and for extra work done on such house not included in the contract, and for enforcing a lien upon the building, etc., for the amount found due the plaintiff. The defendant answers, admitting that the work was done under a written contract and specifications, which he makes a part of his answer, and then denies that the work was done according to the terms thereof, alleging that the work was done unskilfully, and that improper and inferior material was used by the plaintiff; “that he has no knowledge or information sufficient to form a belief as to whether the said work was done under the direction of William Davelaar, architect, and to his acceptance, or whether it was done to the complete satisfaction of said architect, Davelaar; and that if the said Davelaar has expressed satisfaction with said work he has failed to discharge his duty as architect, and has done so in fraud of the rights of this defendant, and by and through some collusive arrangement, as this defendant is informed and believes, between himself and the said plaintiff.”

As to the extra work for which plaintiff claims compensation the answer denies his right to recover for one charge of $40, because he says it was done as compensation for or in place of other work required to be done by the terms of the contract; and as to several other charges for such work he denies that the work was worth the price charged therefor by the plaintiff. He then, by way of counter-claim, specifies the particulars in which the plaintiff has failed to perform his contract, and alleges that he was damaged by such failure in several amounts set out in such counter-claim, and claims damage to the amount in all of $1,500. The pleadings are too voluminous to be set out at length in this opinion. What is above stated is sufficient, perhaps, to present the questions to be determined on this appeal.

The parts of the contract necessary to an understanding of the questions to be determined are the following: “The party of the first part agrees to complete the said dwelling, in all its several parts, in a good, substantial, and workmanlike manner, to the acceptance of William Davelaar, architect, on or before the first day of May, 1880, for the sum of $1,850. * * * And, further, should any dispute arise respecting the true construction of the drawingsor specifications, the same shall be decided by the architect, and his decision shall be final and conclusive; but should any dispute arise respecting the value of any extra work, or of works omitted, the same shall be valued by two competent persons, one employed by the owner and the other by the contractor; and these two shall have power to name an umpire, whose decision shall be binding on all parties.” “No extra work charged unless agreed upon.” “And, further, that the said work is to be executed so as to fully carry out the design for said building as set forth in the specifications or shown on the plans, and according to the true spirit, meaning, and intent thereof, and to the full and complete satisfaction of William Davelaar, architect, who is hereby declared to be the superintendent of said building, and to the satisfaction of the owner.” The last paragraph quoted is the last of the contract, and the words “and to the satisfaction of the owner” are in writing; all the other parts of said last paragraph are printed.

Upon the trial plaintiff gave...