Wambold v. Gehring

BabdeeN, J. The objections to the sufficiency of the notice served by the plaintiffs, urged by the defendants, are purely technical, and are entitled to but little weight. The notice, in addition to a statement of the contract between Weber and Ferguson & Co., and plaintiffs’ succession to the latter’s rights, states that the defendant William Gehring expressly agreed to become personally responsible for the price of such work. It is difficult to see how defendants could have been prejudiced or misled by that statement. This is a suit in equity. The substantial questions were: Were plaintiffs employed by Weber? Was the work done? and How much is the amount due ? The notice served amply [124] met all the requirements of the statute, and the fact that superfluous matters were included therein did not injure the defendants in the slightest degree. Nor are we able to discover any fatal defect in the petition for a lien. It is unnecessary to review it at length. "We have considered all the objections urged by defendants, and by reference to the petition .printed at length in the supplemental case we are satisfied that the trial court arrived at a correct conclusion. A further contention is that the evidence does not support the conclusion as to extra work. Certainly, there is evidence tending in that direction. It may not be overwhelming or so absolutely convincing as to leave no possible doubt of the fact. Still if the ■ question were open and free from original- decision, we should incline towards the conclusion reached by the referee and trial court. The provisions in the contract regarding extra work were binding upon the parties, but might be varied, Avaived, or disregarded by them. It is virtually conceded that the plans and specifications did not include the soft-water tank or the sheet-lead fittings, which were the items allowed by the referee. The defendant was informed that such was the case. He then told the plumber to go ahead and put them in, and advised with reference to the Avork while it Avas being done. The referee-found that this work had nothing to do with the contract with Weber, but was ordered done by the defendant. The stipulation in the contract regarding extra work Avould not prevent plaintiffs from making a new and independent agreement Avith defendant for Avork outside of the contract. A personal request by defendant that plaintiffs do this work, and his personal supervision of it during its progress, is a clear Avaiver of the terms of the original contract, and distinguishes this case from Coorsen v. Ziehl, 103 Wis. 381. The other objections urged are not considered of sufficient importance to require discussion in detail. By the Court.— Judgment is affirmed.