Wendt v. Vogel

Winslow, J. The complaint and proofs of the plaintiff show that the parties agreed that the work should be done to the satisfaction of the superintendents, that their decision as to the quality of work or material should be conclusive, and that payment should be made only on theii* certificates. This agreement is valid and binding, and no right of action lies in favor of the plaintiff for payments alleged to be due under the contract, without such certificates, unless it be alleged and proven that such certificates are withheld dishonestly, fraudulently, or arbitrarily, or clearly by mistake. Hudson v. McCartney, 33 Wis. 331; Bentley v. Davidson, 74 Wis. 420. There are no allegations in the complaint of fraud, dishonesty, or merely arbitrary action on the part of the superintendents, nor are there any proofs which would sustain a verdict to that effect. It is very doubtful whether the complaint sufficiently ah leges that the action of the superintendents in refusing to give plaintiff a certificate on account of the defective' whitewashing was a mistake, but, conceding that the allegation is- sufficient, the proofs are entirely insufficient to es-” [466] tablisb such clear mistake on the part of the superintendents as will excuse the lack of a certificate. The mistake here referred to is not a mere1 error in judgment as to the quality of the work or the responsibility for defects therein, upon conflicting evidence, which may be overthrown by a preponderance of evidence before the jury, but it means unintentional misapprehension or ignorance of some material fact, and it must be clearly established by the evidence, and so gross and palpable that it is equivalent in its effects to dishonest, fraudulent, or merely arbitrary action. To hold otherwise would virtually emasculate the provisions of the contract, and render the condition for the obtaining of certificates practically of no effect. In a case'like the present, the plaintiff, having no certificate, cannot recover unless he excuses the absence of the required certificate by proof that it was dishonestly or arbitrarily refused, or by olear proof of mistake, as above defined. The certificate may, of course, be waived, but there is no proof of facts amounting to waiver here; It follows from these views that the plaintiff showed no cause of action as to the amounts claimed to be due under the contract, because he had no certificate and did not by proper proof excuse its absence. The trial judge, however, allowed the plaintiff’s claim under the contract to go to the jury. It is unnecessary to set forth the charge at length on this subject. The purport and effect of it was to tell the jury that, if they found from the evidence that the reason the whitewashing fell off was because Buestrin furnished green lumber for the building, then they should find for the plaintiff. Due exceptions were preserved to the charge. The erroneous character of the charge is apparent from what has been said. It practically eliminated the decision of the superintendent from the case. It allowed the jury to nullify the decision of the superintendent upon a simple preponderance of the evidence as to the quality of [467] the work, whereas his decision is absolutely binding on the parties, unless shown to be dishonest, arbitrary, or clearly ■mistaken. It cannot be overcome by mere preponderance of evidence against it. As to the extra work, amounting to $157, it was admitted by the defendant that the work ivas done, and no fault was found with it; but it was claimed by him that it was ordered by the superintendent on behalf of the owner oí the building. The circuit judge charged the jury that the bill of extras must be allowed the plaintiff in any event. We think this was erroneous. The superintendent who ordered the extra work testified that he ordered it on behalf of Eicker, and not on behalf of Buestrin. If it was ordered on behalf of Eicker, and the plaintiff understood or knew that fact, he clearly could not recover the value of it from Buestrin. We think there was sufficient proof to take this question to the jury. By the Court.— Judgment reversed, and action remanded for a new trial.