Shine v. Hagemeister Realty Co.

Winslow, C. J.

As the contract in question required the issuance of the architect’s certificate before any payment was due, the complaint should have alleged either that such *347 a certificate had been issued or should have set forth facts showing that the certificate, though earned, had been fraudulently or mistakenly withheld. Hudson v. McCartney, 33 Wis. 331 ; Mindeman v. Douville, 112 Wis. 413 , 88 N. W. 299 . There was no demurrer,'either written or oral, but at the opening of the trial defendant moved to dismiss the complaint and for judgment on the pleadings. This motion probably raised the question as to sufficiency of the complaint, though it does not appear that attention was called to the defect. However, neither party was misled, and evidence was introduced pro and con on the question of the refusal and the reason for it, and we have now passed the time when, after a full and fair trial, a reversal of judgment will be ordered for the sole reason that the complaint as originally served was defective. Sec. 3072m, Stats.

There was sufficient evidence introduced, as it seems to us, to justify the findings of the jury to the effect (1) that the contract was performed as soon as the general construction and other attending circumstances would reasonably permit and (2) that the injury to the basement floor was not occasioned by frost. As to the first of these propositions the argument is made by defendants, not merely that it does not meet the contract provision that the work is to proceed as “fast as the general construction will permit,” without regard to other circumstances, but that much evidence was allowed to be introduced bearing on-the question submitted which was entirely incompetent so far as the requirement of the contract was concerned.

The evidence objected to consisted of statements by the plaintiff and other contractors to the effect that steamfitters were scarce at the time, that men and supplies were hard to get, that jobs of this kind were seldom completed on time, and that the work was done as rapidly as such work is customarily done.

It seems quite clear that this evidence was all incompetent, because the plaintiff’s contract was absolute to push the work *348 as fast as “the general construction would permit,” not as fast as “the general construction and other attending circumstances” would permit. If the result of the action depended on this finding it might be quite doubtful whether the judgment could be sustained, but we do not think it does. It was the injury to the basement floor which forms the basis of the only counterclaim now insisted on by the defendant. If this was not caused by frost, no damage is shown to have resulted from plaintiff’s delay. As we have concluded that there was sufficient evidence to sustain the jury’s answer to this question and that there was no prejudicial error in the rulings so far as this question is concerned, the question whether the erroneous rulings complained of were prejudicial or not becomes immaterial and the counterclaim drops out of the case.

The objection that no architect’s certificate was ever obtained still remains in the case, however, and must be disposed of before the judgment can be affirmed.

As indicated in the opening of this opinion, it was necessary for the plaintiff to have the certificate or to show clearly by evidence that it had been withheld by the architect fraudulently or arbitrarily or by reason of a substantial mistake as to his powers or duties. Coorsen v. Ziehl, 103 Wis. 381 , 79 N. W. 562 .

In the present case the architect clearly attempted to pass upon a matter not submitted to him by the contract, namely, the responsibility for injury to the cement floor. His powers were simply to issue certificates for “work done and materials furnished upon the premises” by the plaintiff. Manifestly that does not include power to determine that the plaintiff’s delay caused the cement floor, which had been laid by another contractor, to heave up. A refusal to award a certificate because of matters entirely outside of the submission is necessarily a mistaken and arbitrary refusal and amounts in law to a fraudulent refusal, even though made in entire good faith. The architect, on the witness stand, *349 stated that the breaking of the floor was the only reason why the last certificate was withheld. This was in legal contemplation no reason. The plaintiff’s work having been done and materials having been furnished, the certificate was due, and the question whether plaintiff’s delay in installing the apparatus caused the breaking of the floor which another contractor had put in was a question to be fought out between the parties after the certificate was given. The architect mistook the scope of his duty and because of that misapprehension refused the certificate. This makes the refusal a mistaken refusal within the meaning of the law, and excuses the plaintiff from producing the certificate.

The contention that the action must be dismissed because brought before the end of the thirty-day period during which final payment was to be made under the terms of the contract, cannot prevail because the objection has been effectually waived by not setting up the fact in the answer and by totally denying liability and going to trial on the merits. Lohr B. Co. v. Ferguson, 223 Ill. 88 , 79 N. E. 35 .

Certain witnesses were called by the plaintiff on the trial as adverse witnesses under the provisions of sec. 4068, Stats., and it is claimed by the appellant that they were not within the classes of persons who could be called as adverse witnesses under the provisions of the section cited. We have been unable to see that the defendant was in any way prejudiced by the fact that the witnesses were called as adverse witnesses. All the testimony favorable to the appellant on the vital issues in the case seems to have been placed before the jury fairly and fully; under such circumstances there can be no reversal even if the witnesses were not within the classes named in sec. 4068.

By the Court. — Judgment affirmed.