Summary
In Hennington v. Valuch (1965), 27 Wis.2d 130, 133 N.W.2d 824, this court found a breach of contract because the contractor failed to perform exactly his part of the agreement.
Summary of this case from Wiggins Construction Co. v. Joint School DistOpinion
March 1, 1965 —
March 30, 1965.
APPEAL from a judgment of the county court of Milwaukee county: ELLIOT N. WALSTEAD, Judge. Affirmed.
For the appellant there was a brief and oral argument by Stephen J. Hajduch of Milwaukee.
For the respondent there was a brief by Peregrine, Schimenz, Marcuvitz of Milwaukee, and oral argument by Mathias G. Schimenz.
On September 5, 1958, appellant Paul Valuch contracted with respondent George Hennington to install plumbing in a building being constructed for respondent at 3500 South Howell Avenue in Milwaukee. The contract provided, among other things, that appellant was to connect the building's sanitary sewer to the city sewer system at the curb. Appellant later agreed to do additional work. The total contract price was $994.17.
Appellant dug a trench and laid a lateral from the building to a point at the curb where information obtained from the city indicated that the main sewer was located. A six- or eight-inch pipe filled with sand was uncovered at this spot. Appellant connected the lateral with this pipe.
The sewer backed up approximately a year later, when the building first became occupied. Appellant offered to make any repairs necessary on a time-and-material basis, but respondent hired another plumber, who discovered that the pipe appellant had tied into was an inoperative sewer. The new plumber dug about a foot deeper and a little more to the west and made connections with the live sewer.
Respondent paid the second plumber $651.80 for his work and paid appellant $663.35 of the amount owing him. Respondent sued for breach of contract for failure to properly connect to the main sewer, and the appellant counterclaimed for the balance due on the contract.
At the close of the testimony, the trial court denied respondent's motion for a directed verdict and submitted the case to the jury on the theory that it was up to the jury to decide whether Valuch had exercised that degree of skill and care ordinarily exercised by plumbers in the community. After the jury found for appellant, the trial court became convinced that the lawsuit turned on whether appellant performed his contract rather than whether he was negligent in doing the job, and granted judgment notwithstanding the verdict to respondent Hennington. Appellant appeals from the judgment $320.98, which was the difference between the amount actually expended of $1,315.15 ($663.35 to appellant and $651.80 to the second plumber) and the contract price of $994.17.
The sole issue presented on this appeal is whether the trial court erred in entering judgment notwithstanding the verdict for respondent. A judgment notwithstanding the verdict admits the findings of the verdict to be true, but grants judgment on grounds other than decided by the jury. It is undisputed that the lateral from the Hennington building was not connected to the city's sewer as specifically called for by the contract. Indeed appellant admitted in his answer that "sewer connections were made to an abandoned sewer not in operation." Appellant defended the action on the ground that, while he did fail to tie into the proper sewer, the job that he did perform was done in a workmanlike manner. It is undisputed that what was done was done well. But appellant's reason or excuse for not performing is not germane to the question of performance or nonperformance. No matter how finespun the justifications for failing to perform become, the fact is that what appellant connected Hennington's lateral to was not a sewer. Thus appellant has failed to perform the terms of the contract wherein he promised: "Sewer to be connected at Curb." Upon the undisputed facts, respondent was entitled to recover for appellant's failure to carry out the contract.
Shumway v. Milwaukee Athletic Club (1945), 247 Wis. 393, 20 N.W.2d 123.
By the Court. — Judgment affirmed.