Sherry v. Madler

WiNsnow, J. It is admitted by appellant tbat tbe written contract for building tbe bouse was in fact executed on Sunday, but it is claimed tbat it was validated by tbe subsequent acts of tbe parties set forth in tbe statement of facts, which recognized its existence. Tbis contention is effectually answered by tbe decision in tbe case of Vinz v. Beatty, 61 Wis. 645, 21 N. W. 787, where a lease of a mill and bouse was executed on Sunday, and possession taken under it, and rent paid under its terms for a considerable time. Notwithstanding these acts of subsequent recognition, it was held tbat. they constituted no ratification of tbe original lease, because it was absolutely void, and hence incapable of ratification. A new contract might be made between tbe parties, either expressly or by implication, from their dealings; but this would be an independent contract, and not a ratification of tbat which was void. Tbe cases relied on by tbe appellant to sustain bis contention, such as Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771, will be found upon examination to be cases where such new and independent contract was made on a subsequent secular day. It follows tbat the trial court [625] was right in bolding that the original building contract, including the clause waiving the right to file a lien, was and remained void, notwithstanding the subsequent dealings o£ the parties. Such being the case, the plaintiff would be entitled on proper pleadings to prove either that a new contract was made, or, in the absence of any such contract, to show the reasonable value of the labor and materials which went into the house. The court found that by their subsequent dealings the parties did make a new and independent contract for the construction of the house (according to the copy of the plans and specifications sent to plaintiff by defendant August 26 and 28, 1902, as we construe the finding) for the old contract price of $1,488. There was no provision for the waiver of liens in this new contract, nor was there any evidence from which it could be found that such a provision was agreed upon. The appellant does not assign error in this court upon the making of this finding; hence we are relieved from any consideration of the question whether it is supported by the evidence, and we accept it as a fact. The statute requires that the claim for lien contain “a statement of the contract or demand upon which it i® founded” and also requires that the complaint “set forth, the substance of the contract under which such work was done.” Secs. 3320 — 8822, Stats. 1898. Neither the claim nor the complaint set forth the contract on which the plaintiff' finally recovered, nor was any formal amendment of either document made; but as the evidence on which the court based, its finding of a new contract was without serious dispute,, and admitted without objection, we conclude that the court; considered both claim and complaint to be amended to conform to the proofs as effectually as if formal amendments hadl been ordered. We now reach the last contention made by the appellant He offered testimony tending to prove that certain parts, of [626] the work and materials did not accord with the requirements of the plans and specifications, and that the house was of less value on account of such defaults; but substantially all such testimony was rejected, and this ruling is now assigned as error, and, we think, rightly so. It is true that there was no affirmative allegation in the answer of defective workmanship, but there was, in effect, a general denial. While the original complaint was upon quantum meruit, it was, in effect, amended by the action of the court into a complaint alleging performance of a contract to build the house according to certain plans and specifications for a fixed sum. We are unable to see why the general denial already pleaded did not put in issue the question whether the house had been completed according to the plans and specifications agreed on, and allow the defendant to prove nonperformance. Moritz v. Larsen, 70 Wis. 569, 36 N. W. 331. But, even if there were necessity for a further specific pleading by the defendant, the circumstances were such that a proper amendment to support the proof offered should have been ordered in order to meet the new complaint which the court, in effect, imported into the case. This rejection of evidence necessitates reversal of the judgment. It will not be necessary to retry the question as to the validity of the original contract, nor the question as to the making of the subsequent contract. These matters must be regarded as settled by the findings, .and are not to be disturbed. But the following questions ■are still open, and further evidence must be taken upon them as the parties are advised: Eirst: Was the house built in compliance with the plans and specifications furnished by defendant to the appellant August 26 and 28, 1902? Second. If not built in exact compliance with them, was there such substantial compliance in good faith as will entitle the plaintiff, under the principle stated in Manitowoc S. B. Works v. Manitowoc G. Co. 120 Wis. 1, 97 N. W. 515, to recover the contract price, less proper deduction for defects [627] or defaults in performance? If tbis latter question be answered “No,” then there can be no recovery; but, if answered “Yes,” then the rules by which proper deductions are to be ascertained are important, and these may be stated •as follows: In case of entire neglect to furnish an item of labor or material, or in case of a defect which may be easily remedied without taking down and reconstructing a sub•stantial portion of the building this allowance should equal the reasonable expense of supplying or correcting the defect. In case of a defect which could only be remedied by taking down and reconstructing some substantial portion of the building the allowance should be the amount which the building is worth less, by reason of the defect, than the contract price. If the defendant desires to amend his answer to fully present these questions in an orderly manner, such amendments should be allowed without terms. By the Gourt. — Judgment reversed, and action remanded for further proceedings in accordance with this opinion.