Opinion
March 3, 1954 —
April 6, 1954.
APPEAL from a judgment of the circuit court for Milwaukee county: GUSTAVE G. GEHRZ, Circuit Judge. Affirmed.
For the appellants there was a brief by Anderson Murphy, attorneys, and J. Stewart Murphy of counsel, all of Milwaukee, and oral argument by J. Stewart Murphy.
For the respondent there was a brief by Erbstoeszer, Cleary Decker of Milwaukee, and oral argument by Vernon Erbstoeszer.
Action by the plaintiff Joseph J. Guschl to recover from the defendants Walter H. Schmidt and Gertrude Schmidt, his wife, a balance alleged to be due plaintiff on a contract for remodeling the defendants' home; and counterclaim by the defendants to recover from the plaintiff the amount previously paid by them on the contract as their damages for alleged breach of contract by plaintiff.
The plaintiff Guschl is a carpenter-contractor and builder. The defendants Schmidt own a small residence property in the town of Mequon in Ozaukee county, which they had purchased in October, 1943, for $4,850. In the spring of 1949, the Schmidts contacted Guschl and wanted him to submit a price for remodeling their home. He informed them that before he could do so there would have to be plans drawn. He told the Schmidts he knew an architect who had drawn plans for other customers and that he would bring him out and introduce him to the Schmidts. This Guschl did, the architect being one Berres.
Berres, with the assistance of Guschl, measured the existing house, but Berres did not remember who held the tape and who read off the measurements. A mistake was made in measuring the outside length of the house, such length having been recorded as 24 feet, when it was actually 22 feet. The Schmidts told Berres that which they wanted done and provided him with rough sketches. From the measurements taken, and the sketches and directions furnished by the Schmidts, Berres prepared plans in the form of blueprints. Guschl was with Berres when he brought the blueprints to the Schmidts. Included with the blueprints was Berres' statement for $40 to cover the cost of preparing the plans made out to the Schmidts, which was handed to the Schmidts with the plans. When Guschl saw this statement he took it and said that he would assume the payment of it, but neither the Schmidts nor Guschl ever made payment to Berres for his services in drawing the plans.
A contract dated July 25, 1949, was entered into between the parties whereby Guschl undertook to remodel the Schmidts' home according to the plans for $6,200. The plans, among other things, provided for building additions onto opposite ends of the house as well as ripping out interior partitions and remodeling the interior. Also included in such $6,200 price were the furnishing and installing of a new furnace and the bathroom fixtures.
Guschl first constructed the additions on the outside before doing the interior tearing out of partitions and erecting new ones. The fact that the old portion of the building was two feet shorter than shown in the plans was not discovered until Guschl was partly along with the interior work. As a result of the shortage, Guschl made the dimensions of the kitchen smaller and also those of the, smaller of the two bedrooms. The result was that the kitchen was of inconvenient size and the bedroom was rendered practically unusable as a bedroom, although the Schmidts did manage to get a bed into it.
During all of the work the Schmidts resided in the premises and watched the work from day to day. They paid $3,500 to Guschl after the exterior work was done, and the further sum of $2,100 after the inside partitions were put up and lathed, but before the wood trim was installed. They also paid him $74.84 for extras.
Guschl instituted the within action to recover $573.86 balance which he alleged was due him on the contract. The Schmidts by their answer denied liability as to payment of such claim, and counterclaimed for $5,674.84 which they had paid Guschl. The counterclaim alleged defective workmanship in many specified particulars, and the cutting down in size of the kitchen and one bedroom so that they were of a different size than shown in the plans.
The case was tried to the court without a jury, the parties having waived a jury trial. Under date of April 3, 1953, the trial court made and filed the following memorandum decision:
"1. The court, after careful study of the pleadings and evidence in the principal action, has reached the conclusion that plaintiff has been fully and amply paid for all work and materials furnished in the remodeling job in suit allowing offsets for defective workmanship. The latter will not be reviewed or described at length in this memorandum decision. Plaintiff's complaint is dismissed upon the merits with costs in the sum of $50 plus disbursements. (Sec. 271.04(1), Stats.)
"2. The garnishment proceeding instituted by the plaintiff is also dismissed but without costs.
"3. The amounts demanded in the counterclaims of the defendants are excessive and justly not recoverable by defendants. Deficiencies in the workmanship furnished by plaintiff for which he is held liable are sufficiently charged to him by the dismissal of his action pursuant to paragraph 1 hereof.
"Because of the large and excessive demand urged by defendants in their counterclaims, a cost allowance of $50 will be made to the plaintiff to offset the amount of costs stated in said paragraph 1 of this memorandum.
"4. Further facts and details will be embodied in the findings of fact to be signed by the court after both parties have submitted their proposed findings as they believe the same to be true and just. The court will upon receiving those submitted by counsel prepare its set of findings of fact and conclusions of law in accordance with this memorandum."
Thereafter, plaintiff Guschl's counsel submitted to the trial court a set of findings of fact and conclusions of law drafted by said counsel. The findings of fact were brief and were numbered from one to five, inclusive, and such findings and conclusions of law were in accordance with the memorandum decision. The trial judge made no material revision in such findings and conclusions of law and signed the same under date of May 15, 1953.
Apparently thereafter counsel for the defendants Schmidt submitted proposed findings of fact and conclusions of law drafted by said counsel. In contrast to the brief findings of fact submitted by plaintiff's counsel, these findings were lengthy and were numbered from one to twenty-five, inclusive. Such findings set forth in great detail defects in workmanship and failure of Guschl to comply with the plans constituting part of the contract. On this appeal only findings Nos. 23 and 25 thereof need be considered, the same reading as follows:
"23. That the house as remodeled is of less value and of less utility than prior to the remodeling.
"25. That the defendants, however, by reason of the fact that they have demanded the return of all money paid under the contract have made an excessive and unjust demand and that amount adequately and fairly represents the sum to which the plaintiff is entitled, and because of the fact that the defendants have made demand for the return of that amount and such demand is considered to be excessive, no part of the counterclaim is justly recoverable by them."
The conclusions of law corresponded with those of the previous findings submitted by plaintiff's counsel and already signed by the court. Pasted on the front page of said findings of fact and conclusions of law drafted by defendants' counsel is a small piece of paper having typed thereon, "Supplemental Findings of Fact and Conclusions of Law," so as to constitute part of the caption. Also there has been typed in as part of the introductory recitals, wherein it is recited that the trial judge "make[s] these findings and reach[es] these conclusions of law," the following additional words: "pursuant to, and in conformity with, the court's memorandum decision dated April 3, 1953, and filed herein."
Apparently the affixing of such title and the typing in of such additional recitation were done by the trial judge or pursuant to his request, but the record is silent as to this. The trial judge signed such "supplemental" findings and conclusions under date of May 25, 1953. judgment was entered under date of June 12, 1953, dismissing both the plaintiff's complaint and the defendants' counterclaim and taxing costs in conformity with the memorandum decision and the subsequent two sets of conclusions of law. From such judgment the defendants Schmidt have appealed.
Counsel for the defendant owners contend on this appeal that under finding of fact No. 23 contained in the so-called "supplemental" findings of fact the defendant owners are entitled to judgment against the plaintiff contractor on their counterclaim for the entire $5,600 paid by them on the contract price. Said finding is to the effect that the house as remodeled is of less value than prior to the remodeling.
It is at once apparent, in comparing finding No. 23 of the "supplemental" findings of fact with the trial court's memorandum decision, that such finding is in sharp conflict with the memorandum decision. Such finding of fact is against the great weight and clear preponderance of the testimony given at the trial, and therefore cannot stand.
The defendant owners attempted to prove their damages on their counterclaim by the testimony of two realtors, Russell and Wilbert. Russell testified that if the house had been remodeled according to the plans drawn by the Architect Berres, such house would sell for $12,900 to $13,500, while in its present condition the house is worth $10,000 "tops." Wilbert testified that the value of the house as remodeled is from $2,500 to $3,000 less than the house shown on the plans. Both Russell and Wilbert stated that the principal reason they found the house to be now worth substantially less than it would have been, if it had been remodeled strictly according to the plans, was because of the cutting down of the size of the kitchen and second bedroom. They especially emphasized the fact that the smaller bedroom was too small to be used as a bedroom so that the house in reality was a one-bedroom home instead of a two-bedroom one. The cutting down of the size of the kitchen, and the smaller of the two bedrooms opposite the kitchen, was due to the previously mentioned mistake in making the measurements made preliminary to drawing the plans. The shortage was in the original house as the additions at either end had been constructed of the exact size specified in the plans. The plaintiff contractor had taken such two-foot shortage principally off from the kitchen and the smaller of the two bedrooms. The plans called for this bedroom to be eleven feet six inches in length by seven feet in width. (Significantly the plans did not label such room a bedroom but a "lounging room.") As a result of reducing the size of such room the same is now L-shaped, the over-all length still being eleven feet six inches, but it is only seven feet wide for a distance of five feet three inches and for the remaining six feet three inches of its length it is but five feet eleven inches wide.
The defendant owners paid to the plaintiff contractor the last $2,100 of the $5,600 paid by them on the contract after the partition walls of both the kitchen and the smaller bedroom had been erected and lathed. Furthermore, the owners were living on the premises during all the time the remodeling was being done and therefore observed the work performed from day to day. Regardless of whether the Architect Berres was the agent of the owners or the contractor, and irrespective of who was responsible for the two-foot mistake in measuring the length of the original house, the payment by the owners of the $2,100 after the partition walls had been erected must be deemed to have constituted a waiver by the owners of any claim for damages due to the said rooms being smaller than shown on the plans. While a partial or total payment on a building contract does not constitute an acceptance of the work in so far as latent defects are concerned, such a payment by the owner with knowledge of a particular defect does constitute a waiver of such defect in the absence of any other circumstances mitigating against such a waiver. Keller v. Oberreich (1886), 67 Wis. 282, 30 N.W. 524; Bannister v. Patty's Executors (1874), 35 Wis. 215; Bailey v. Jones (1928), 243 Mich. 159, 219 N.W. 629; Tonawanda v. Stapell, Mumm Beals Corp. (1934), 240 App. Div. 472, 270 N.Y. Supp. 377; 9 Am. Jur., Building and Construction Contracts, p. 41, sec. 54; 17 C.J.S., Contracts, p. 1104, sec. 514 (3).
There were defects in workmanship in plaintiff contractor's performance of the contract as to which there was no waiver thereof by the defendant owners. As to such defects the defendants were entitled to damages either as a setoff against the contractor's cause of action or upon their counterclaim. However, inasmuch as the damages testified to by defendant owners' experts Russell and Wilbert were largely based on the cutting down of the size of the kitchen and the smaller bedroom, their testimony affords no basis for computing the owners' damages for the defective workmanship. In fact, there is no evidence in the record which attempts to establish the amount of damages due the defendant owners solely for the defects in workmanship. The defendant owners therefore are in no position on this appeal to establish that such damages for defective workmanship exceeded the approximate sum of $600 which the court allowed therefor by dismissing the plaintiff contractor's cause of action in which he sought to recover the unpaid balance on the contract.
We consider that some reference should be made in this opinion to the unfortunate conflict between certain of the "supplemental" findings of fact with the trial court's memorandum decision and the first set of findings. As mentioned in the statement of facts preceding this opinion, the record is silent as to any explanation for such conflict, except that the original findings were drafted by the attorneys for plaintiff, while the supplemental findings were drafted by opposing counsel. We surmise that this conflict resulted from failure of the able trial judge to read completely through all of the findings of fact in the draft submitted by defendants' counsel before signing the same as supplemental findings. We cannot conceive of him so signing such second set of findings if his attention had been called to findings Nos. 23 and 25. The statement contained in finding No. 25, to the effect that the reason for the trial court disallowing any damages on the counterclaim was due to the fact that the defendants had asked for an excessive amount is not substantiated by, or in accord with, the trial court's memorandum decision.
By the Court. — Judgment affirmed.