Wm. G. Tannhaeuser Co., Inc. v. Holiday House, Inc.

• Decision Date: 26 June 1957
• Citation: 83 N.W.2d 880,1 Wis.2d 370
• Parties: WM. G. TANNHAEUSER CO., Inc., a Wiscorporation, Appellant, v. HOLIDAY HOUSE, Inc., a Wis. corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 880

83 N.W.2d 880

1 Wis.2d 370

WM. G. TANNHAEUSER CO., Inc., a Wiscorporation, Appellant, v. HOLIDAY HOUSE, Inc., a Wis. corporation, Respondent.

Supreme Court of Wisconsin.

June 26, 1957.

Frederick & Mantyh, Milwaukee, for appellant.

Gerald Hayes, Jr., Milwaukee, for respondent.

CURRIE, Justice.

The civil court by its findings of fact found that the failure of the plaintiff to light the sign from October 1, 1954, to June 7, 1955, except for the inadequate lighting provided during the month of December, 1954, 'was a substantial failure on the part of the plaintiff to carry out the provisions of the contract'. Such finding was specifically approved in the memorandum opinion filed by the circuit court on the appeal to that court. On the appeal to this court the plaintiff challenges such finding and contends that it substantially performed the contract as a matter of law.

The difficulty of laying down any general test of what constitutes substantial performance of a contract is emphasized by the following statement appearing in 3 Corbin, Contracts, p. 767, sec. 704:

'It is not easy to lay down rules for determining what amounts to 'substantial performance', sufficient to justify a judgment for the contract price (subject to a counterclaim for injury, if asserted) in any particular case. It is always a question of fact, a matter of degree, a question that must be determined relatively to all the other complex factors that exist in every instance. The variation in these factors is such that generalization is difficult and the use of cases as precedents is dangerous.' (Emphasis supplied.)

The finding of fact by the civil court, that there was a substantial failure of performance by the plaintiff, expressly negatives the claim of substantial performance by it. Such finding must stand if not contrary to the great weight and clear preponderance of the evidence. Schroeder v. Schroeder, 1952, 262 Wis. 133, 54 N.W.2d 49.

The purpose of placing the sign where it was located was in large part dictated by the fact that people attending sports events at the Arena would view it as they left such building. The heavy attendance at the Arena was during the late fall, winter, and early spring, being the period when the sign was not lighted. The attendance at evening events there is far greater than those scheduled during daylight hours. Ninety per cent of the defendant's business is done between the hours of 5 p. m. and 2 a. m. The president of the defendant testified that the sign was without value unlighted. On the other hand, the plaintiff offered in evidence photographs of the unlighted sign taken at night which disclose that it was readable at a considerable distance because illumined by other lights in the vicinity. However, the photographer who took such photographs testified that there was a great deal of difference between lighted signs in the vicinity and the unlighted sign in question.

The most damaging testimony to plaintiff was an admission made by its president in his testimony. The plaintiff had submitted a two months' bill to the defendant for rental of the sign at a rate of one-half the stipulated contract rental. When asked if such bill was submitted on the theory that the unlighted sign was worth only half the value of the lighted sign, he answered, 'That is correct as a fair value'. He then attempted to qualify such answer by claiming the fair rental for the unlighted sign should have been more than half the contract rate because the contract called for lighting the sign less than twelve hours each day. The implication is clear that he would not have made such qualification of his answer if the contract had required the sign to be lighted twelve out of such twenty-four hours.

Furthermore, it strikes us that people emerging at the conclusion of an evening's performance at the Arena, who desired to go to some place to eat, if they did see the unlighted sign, might well conclude from the failure to have the lights turned on that defendant's place of business was not then open.

There was ample evidence to support the trial court's finding that the failure of the plaintiff to light the sign for an eight month period, except for the temporary inadequate lighting during December, 1954, was a substantial breach of performance by the plaintiff. Because the sign was especially contracted for by the defendant to attract business from the night patrons of the Arena, the absence of lighting could not help but defeat such objective. We consider particularly pertinent the following quotation from 3 Corbin, Contracts, pp. 771-772, sec....