Wendt v. Vogel

• Decision Date: 10 April 1894
• Citation: 58 N.W. 764,87 Wis. 462
• Parties: WENDT v. VOGEL.
• Court: Wisconsin Supreme Court

87 Wis. 462

58 N.W. 764

WENDT

v.VOGEL.

Supreme Court of Wisconsin.

April 10, 1894.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by August Wendt against Frederick Vogel, Jr., executor of Henry Buestrin, deceased. Judgment for plaintiff. Defendant appeals. Reversed.

Action by a subcontractor against his principal contractor to recover a balance due for mason work upon a building. In 1889, one Buestrin, defendant's testator, contracted with one Ricker to erect a building in the city of Milwaukee, on Ricker's land. Buestrin contracted in writing with plaintiff to do the mason work on the building for the sum of $4,448. This contract is attached to the complaint, and it provides, among other things, for the payment of the plaintiff upon certified estimates of the superintendents, Messrs. H. C. Koch & Co. It also provides that all the work is to be done to the entire satisfaction of the superintendents; that in case of disagreement between the parties as to the quality of the work or material, or any other matter connected with the work, the decision of the superintendents shall be final and conclusive; also, that in case any alteration should hereafter be made by order of the party of the second part, or by direction of the said superintendents, by varying from the plans or specifications, either by adding thereto or diminishing therefrom, or otherwise however, such alterations shall not vacate the contract hereby entered into, but such additions and deductions shall be estimated by said superintendents at their proper value, and added to or deducted from the gross amount to be paid, as above mentioned. The complaint alleges due performance of all the work under the contract, also the performance and furnishing of extra labor and materials at defendant's request, to the additional amount of $157, and that there is due and unpaid on the contract, including extras, the sum of $435. The complaint further alleges that plaintiff requested the superintendent to give him a certificate of completion of the work, in accordance with his contract, which said superintendent refused to do--First, because some of the whitewash put in the building by plaintiff came off; but plaintiff alleges that the whitewash came off on account of the act of Buestrin in putting in green lumber in the building. Second, the superintendent said that he had nothing to do with it, and that plaintiff should go and see the defendant. The answer denies that plaintiff ever completed the work according to the contract, or to the satisfaction of the superintendents, and that they refused to give the plaintiff any estimate or certificate of allowance for any payment to the plaintiff above the payments admitted in the complaint. The answer also denies that defendant ever requested any extra work done, and, if any was done by the plaintiff, it was done by order of the owner of the building. The answer also contains a counterclaim for plaintiff's default in not fulfilling his contract to the satisfaction of the superintendents. A reply to the counterclaim was served by plaintiff, alleging that, if defendant suffered damage, it was by reason of his own default in furnishing green lumber and bad material. On the trial, the plaintiff testified to the completion of his contract. It appeared, further, that one part of plaintiff's work under the specifications of his contract was to whitewash the greater part of the interior of the building, including under side of roof and ceilings, and that the mason must protect his part of the work against frost during construction. The whitewashing was done in winter. It also appeared from plaintiff's evidence that the whitewash came off from the ceilings and the roof, but there was some evidence tending to show that the whitewash was of good...