Wendt v. Vogel

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtWINSLOW
Citation58 N.W. 764,87 Wis. 462
PartiesWENDT v. VOGEL.
Decision Date10 April 1894

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...

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20 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...103 Wis. 359; Schmidt v. North Yakima, 12 Wash. 121; Smith v. Brady, 17 N.Y. 173; Vincent v. Stiles, 77 Ill.App. 200; Wendt v. Voegel, 87 Wis. 462; Pope v. King, 16 L. R. A. (N. S.) 489.) The plaintiff having been guilty of a breach of the special contract, and having attempted to abandon i......
  • First Sav. & Trust Co. v. Milwaukee Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 17, 1914
    ...bad faith. John Pritzlaff Hdw. Co. v. Berghoefer, 103 Wis. 359, 79 N. W. 564;Coorsen v. Ziehl, 103 Wis. 381, 79 N. W. 562;Wendt v. Vogel, 87 Wis. 462, 58 N. W. 764;Forster Lumber Co. v. Atkinson, 94 Wis. 578, 69 N. W. 347;Hudson v. McCartney, 33 Wis. 331;Foeller v. Heintz, 137 Wis. 169, and......
  • Berry v. Huntington Masonic Temple Ass'n, (No. 3203.)
    • United States
    • Supreme Court of West Virginia
    • May 1, 1917
    ...rights of both the contracting parties." Dishonest, fraudulent, or merely arbitrary action is declared to be sufficient in Wendt v. Vogel, 87 Wis. 462, 58 N. W. 764. Lack of a certificate of completion of work does not preclude right of recovery, if it is shown to have been unreasonably wit......
  • MCI Construction v. Hazen and Sawyer, 1:99CV00002 (M.D.N.C. 8/29/2003), 1:99CV00002.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 29, 2003
    ...City of Wauwatosa v. Jacobus and Winding Concrete Construction Co., 271 N.W. 21, 24, 223 Wis. 401, 409 (Wis. 1937); Wendt v. Vogel, 58 N.W. 764, 766, 87 Wis. 462, 466-467 (Wis. 1894). If so, the expedited procedure allegedly bargained for by the parties is already lost and Kitchen's propose......
  • Request a trial to view additional results
20 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...103 Wis. 359; Schmidt v. North Yakima, 12 Wash. 121; Smith v. Brady, 17 N.Y. 173; Vincent v. Stiles, 77 Ill.App. 200; Wendt v. Voegel, 87 Wis. 462; Pope v. King, 16 L. R. A. (N. S.) 489.) The plaintiff having been guilty of a breach of the special contract, and having attempted to abandon i......
  • First Sav. & Trust Co. v. Milwaukee Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 17, 1914
    ...bad faith. John Pritzlaff Hdw. Co. v. Berghoefer, 103 Wis. 359, 79 N. W. 564;Coorsen v. Ziehl, 103 Wis. 381, 79 N. W. 562;Wendt v. Vogel, 87 Wis. 462, 58 N. W. 764;Forster Lumber Co. v. Atkinson, 94 Wis. 578, 69 N. W. 347;Hudson v. McCartney, 33 Wis. 331;Foeller v. Heintz, 137 Wis. 169, and......
  • Berry v. Huntington Masonic Temple Ass'n, (No. 3203.)
    • United States
    • Supreme Court of West Virginia
    • May 1, 1917
    ...of both the contracting parties." Dishonest, fraudulent, or merely arbitrary action is declared to be sufficient in Wendt v. Vogel, 87 Wis. 462, 58 N. W. 764. Lack of a certificate of completion of work does not preclude right of recovery, if it is shown to have been unreasonably withh......
  • MCI Construction v. Hazen and Sawyer, 1:99CV00002 (M.D.N.C. 8/29/2003), 1:99CV00002.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 29, 2003
    ...City of Wauwatosa v. Jacobus and Winding Concrete Construction Co., 271 N.W. 21, 24, 223 Wis. 401, 409 (Wis. 1937); Wendt v. Vogel, 58 N.W. 764, 766, 87 Wis. 462, 466-467 (Wis. 1894). If so, the expedited procedure allegedly bargained for by the parties is already lost and Kitchen's propose......
  • Request a trial to view additional results

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