Opinion
No. 226.
Argued November 4, 1971. —
Decided December 2, 1971.
APPEAL from a judgment of the county court of Outagamie county: RAYMOND P. DOHR, Judge. Affirmed.
For the appellants the cause was submitted on the brief of John E. Esler of Kaukauna.
For the respondent there was a brief by Bollenbeck, Patterson, Froehlich, Jensen Wylie, attorneys, and A. Gerard Patterson of counsel, all of Appleton, and oral argument by A. Gerard Patterson.
Action commenced by Northern State Bank, respondent, against Ronald E. Biechler and June E. Biechler, appellants, to foreclose a mechanic's lien. B. W. Lodwick, Valentine Werner and Henry Werner, doing business as Walsco of Appleton, were impleaded as defendants.
The lien sought to be foreclosed in this action arose out of a contract between appellants and impleaded defendants (hereinafter "Walsco") for the installation of aluminum siding on the Biechler home. Appellants contacted Walsco in response to a newspaper advertisement. A salesman for Walsco came to appellants' home and quoted a price of $1,950 for a complete siding job. This figure was alleged to be a special discount price. The salesman asserted that the price included a lifetime guarantee for work and materials, and that repairs would be made by the seller whenever necessary. The low price was allegedly made available to appellants because Mr. Biechler was a businessman and, therefore, entitled to the "businessman's discount." The salesman also mentioned the possibility of using the Biechler home as a reference for other customers interested in Walsco's work. Although appellants knew little of the cost of siding, they signed the contract, the total price of which, including carrying charges, amounted to $2,534.40.
Walsco installed the siding. However, it soon became evident to appellants that the job was poorly done. The corners were loose, and several pieces of siding were cut too short for the side of the house. Rather than fitting the siding around wires and pipes leading into the house, square holes had been cut to accommodate these projections. The molding around the rear door was insecure and pulled away easily. One side of the house leaked when it rained. Appellants made several calls to Walsco requesting them to repair the siding, but little was done to improve the workmanship. Appellants ceased payments on the contract, which Walsco had assigned to Northern State Bank. At time of trial $1,867.51 remained unpaid.
Appellants' answer to Northern State Bank's complaint was in the nature of a plea of confession and avoidance. They admitted the existence of the contract but alleged it was procured by fraud. By cross complaint Walsco was impleaded as a defendant.
The jury heard the testimony of several contractors who testified as to the cost of replacing or repairing the siding to make it a top quality job. Their estimates ranged from $200 to $1,500. The sales manager of Walsco testified that the price of $1,950 was fair for what the appellants received. In addition, he stated that it would cost approximately $350 to repair the apparent defects in the siding. The jury found the contract was induced by fraud and that the value of the job as represented was $2,925, while the value of the job as performed was $1,950. The trial judge, applying the "benefit-of-the-bargain" rule for determining damages, deducted the difference between the two values found by the jury, or $975, from the amount due on the note held by Northern State Bank and entered judgment against appellants for $892.51. Biechlers appeal from this judgment.
Two issues are presented on this appeal:
(1) Was the finding of the jury on the question of the actual value of the siding at the time it was installed supported by any credible evidence; and
(2) Did the trial court err in applying the answers of the special verdict?
Evidence with respect to actual value of siding at installation.
The sales manager of Walsco testified that $1,950 was a fair price for what appellants received. In addition, the general manager of a competing siding firm stated that Walsco did a normal job of applying this siding. There was some evidence showing that some of the damage to the siding was caused by neglect and abuse or by settling of the house. The lifetime guarantee of work and materials included in the contract also supports the finding that the actual value of the job was $1,950.
We think the evidence in the record supports the jury's finding as to value. It is settled law that a trial court may not change the jury's answer to a question unless the answer is not supported by any credible evidence. Jost v. Dairyland Power Cooperative (1969), 45 Wis.2d 164, 171, 172 N.W.2d 647. The question of credibility of witnesses is for the jury. Baker v. Northwestern National Casualty Co. (1963), 22 Wis.2d 77, 86, 125 N.W.2d 370.
Application of benefit-of-bargain rule.
Wisconsin is committed to the benefit-of-bargain rule. Harweger v. Wilcox (1962), 16 Wis.2d 526, 534, 114 N.W.2d 818.
". . . A defrauded vendee's measure of damages is the difference between value of the property as represented and its actual value as purchased. . . ." Chimekas v. Marvin (1964), 25 Wis.2d 630, 633, 131 N.W.2d 297.
In the instant case, the jury found that the value of the siding job as represented was $2,925 and that the actual value was $1,950. The court deducted the difference between these two amounts, or $975, from the balance due on the contract, which was $1,867.51, and rendered judgment in favor of Northern State Bank for $892.51. This was a proper application of the benefit-of-bargain rule.
Appellants contend, however, that a different rule should be applied in cases involving foreclosure of liens than in actions on the contract itself. We fail to see any basis for a distinction. The benefit-of-bargain rule was applied in Chapman v. Zakzaska (1956), 273 Wis. 64, 76 N.W.2d 537, which was an action to recover on a promissory note for the purchase price of a used automobile. The vendee defended by proving that the seller had fraudulently set back the mileage reading on the odometer. That case is similar to the instant action.
In the instant case, if the jury had found that the actual value of the siding was less than the contract price, the benefit-of-bargain rule would require an adjustment of the interest and carrying charges on the note to reflect the lower value. Such was not the case here, however.
We conclude that the evidence supports the jury's finding as to values and that the trial court properly applied the benefit-of-bargain rule.
By the Court. — Judgment affirmed.