Wortman v. Kleinschmidt

• Decision Date: 27 June 1892
• Citation: 30 P. 280,12 Mont. 316
• Parties: WORTMAN v. KLEINSCHMIDT et al.
• Court: Montana Supreme Court

30 P. 280

12 Mont. 316

WORTMAN v. KLEINSCHMIDT et al.

Supreme Court of Montana

June 27, 1892

Appeal from district court, Lewis and Clarke county; WILLIAM H HUNT, Judge.

Action by Daniel P. Wortman against Reinhold H. Kleinschmidt and another. From a judgment for plaintiff, defendants appeal. Modified.

Cullen Sanders & Shelton, for appellants.

H. G. & S. H. McIntire, for respondent.

BLAKE C.J.

The complaint, among other things, alleges that: "And plaintiff avers that, in addition to the sum specified and mentioned in said contract, the said plaintiff, for and at the special instance and request of said defendant Reinhold H. Kleinschmidt, performed extra work and furnished extra materials, over and above those specified in said contract the price of which was and is the sum of *** $763.40, making the total price of the work done and materials furnished by said plaintiff on said buildings the sum of *** $57,473.40." The account which was filed by the respondent for the purpose of securing a mechanic's lien upon the property contains this statement: "That in addition thereto certain extra work and materials furnished over and above those specified in said contract, were furnished and done by said Daniel P. Wortman on said buildings and structures, at the request of said Reinhold H. Kleinschmidt, the value of which was and is the sum *** $763.40." The account consists of these items, which are not set forth in the pleadings:

To contract for building granite block .....................	$56,710	00
To extra work and sund. on same, as follows:
Sept. 12th.
To freight and transfer on glass ................................	19	69
To extra work on floor ..........................................	72	00
To rubblestone and carpenter work ................................	7	00
To extra work per special contract on first"story ceiling ......	235	00
To setting and moving vault doors:
640 brick .....................................................	$ 5	44
Labora .........................................................	12	00
Brick mason ....................................................	21	00
	----------
To freight and transfer on 4 boxes of glass .....................	13	70
To 55 feet cherry dado, at $3.75 ...............................	206	25
To one door and frame, with trimmings in basement ...............	16	00
To plastering in basement ........................................	6	12
To 16 feet of base ...............................................	2	60
To steps to annex second story ..................................	12	00
To door in elevator shaft ........................................	8	00
To 29 hours' work ordered by Scott, at 40c ......................	11	60
To electric work on elevator ...................................	120	00
	----------
Ford ....................................................	$57,473	40

The answer denies that, "in addition to the sum mentioned and specified in said contract, plaintiff, for or at the special instance and request of defendant R. H. Kleinschmidt, performed extra work, or furnished extra materials, over and above those specified in said contract, the price of which was or is the sum of $763.40, or any other sum whatever; or that the total price for the work done or materials furnished by said plaintiff on said buildings is the sum of $57,473.40, or any other sum than the sum of $56,710. And defendants aver that, if the plaintiff performed any extra work, or furnished any extra materials, as set forth in plaintiff's said complaint, he did not perform the same in accordance with the terms of his said contract set forth, and should not now be allowed to make any additional claim for work done, for the reason, as defendants are informed and believe, none of said extra work was done in pursuance of a written order from the architects, and no notice of any claim for extra work was made at any time by plaintiff to the architects, in writing, within three days from the beginning of said work, as required by the contract, a copy of which is set forth in plaintiff's complaint."

The replication is as follows: Plaintiff "avers that the additional work, labor, and materials, over and above that specified in the contract, which is set out in the complaint herein, were done and furnished by plaintiff on the buildings, in said complaint mentioned, at the instance and request of defendant Kleinschmidt, as set forth in paragraph 2 of the complaint herein, and were done and furnished, and the contract therefor made, long subsequent to the execution and delivery of said first-mentioned contract, and were all ordered and accepted, used and enjoyed, by said defendant Kleinschmidt, and were for his use and benefit; and were done and furnished on his promise to pay for the same; and were all done and furnished with the full knowledge of his architects and agents; and that no demand or intimation was made to plaintiff that he should have any written order therefor, nor was he in any wise notified to claim compensation therefor, in writing, nor in any other manner; wherefore plaintiff avers that said defendant should be now barred and estopped from asserting the necessity of any written order or paper for such extra work and materials." The contract is made a part of the complaint, and provides expressly for the payment of work of this character: "The contractor shall make no claim for additional work unless the same shall be done in pursuance of a written order from the architects, and notice of all claims shall be made to the architects in writing within three (3) days of the beginning of such work."

The case was tried upon these issues. The appellants objected to the introduction of any testimony in support of the claim for additional work or materials, upon the ground that the contractor had not complied with the plain terms of the agreement. The objection was overruled, and the jury were instructed in this language: "Upon the question of extra work you are instructed that if you believe from the evidence that Wortman did or performed any work, or furnished any materials, upon the said buildings of Kleinschmidt, extra and in addition to the work or material specified in his contract, and that said work was done and material was furnished at the request, or with the knowledge and consent, express or implied, of said Kleinschmidt or his agents, then the jury are instructed that the plaintiff is entitled to recover the reasonable value of such extra work and material from the defendant, and you should so find by your verdict."

Wortman, the respondent, testified: "By the order of Kleinschmidt and his superintendent, the architects, and from drawings made by the architects,--all but one instance,--the flooring in the middle room of the granite block I laid through Kleinschmidt's order, Paulsen being present, and he agreeing to pay me the sum of $72; and the cherry dado in the center room of the granite block,--Kleinschmidt and Paulsen being present,--Kleinschmidt agreed to pay me $3.75 a lineal foot for the cherry dado, it being five feet high. I had to send to St. Paul for that. If my memory serves me right, I had a communication in writing with Kleinschmidt about the cherry dado in the month of July." This communication was then read: "Helena, Mont., July 25, 1890. R. H. Kleinschmidt--Dear Sir: I propose to lay Oregon floor in center room, first story of granite block, for the sum of seventy-two dollars; also to put cherry dado five feet high in the entrance to same for three dollars and seventy-five cents per foot; you allowing five days' extension of time on account of dado. Respectfully submitted, DANL. P. WORTMAN."

The respondent testified further: "Kleinschmidt instructed me to go ahead and do the work, and instructed me to go to Paulsen for a detail as to the dado. Another of the extra items was, I put a wooden formation on the first-story ceiling of the annex building. The ceiling was first plastered as per the plans and specifications, and then and there was a formation put across it. *** The price of that ceiling was submitted to Kleinschmidt, if my memory serves me right, in the same manner that these other two were, and he accepted it, and referred me to Paulsen as to a detail. *** Paulsen furnished the detail, and I furnished the material, and I executed the work." Respondent also testified that Kleinschmidt had at one time a superintendent, one Milligan, who bought some rubblestone. "In laying the center floor this Milligan and Kleinschmidt agreed that he should strip the floor, it being very crooked, and I was to lay the floor on the strips; but Milligan requested me, as Kleinschmidt's superintendent, to lay those strips, and allowed me three or four or six dollars, I forget the exact amount, for that work; I think the whole thing is some eighty odd dollars." The plans were changed so that two money vaults in the annex building were constructed, "as desired by Kleinschmidt and his architects," upon the opposite side of the room from what was originally designed. The position of the closets in the basement of the annex building was changed from the north west corner to the south west corner, in accordance with the request of "Kleinschmidt and his superintendent." Respondent further testified: "I moved them, and in addition set a partition about six feet long and ten feet high, plastered on either side, and an additional partition of one wall, about eight feet long and eight or nine feet...