Modern Steel Structural Co. v. English Construction Co.

SiebecKER, J. , The contention is made that the trial court erred in holding that the reply to 'the counterclaim put in issue the amount claimed to be due defendant as damages for plaintiff’s breach of contract as subcontractor. Under the rule that pleadings should be liberally construed with a view to substantial justice between the parties, no pleading is to be condemned if the allegations of fact claimed to have been stated can be read therefrom with reasonable certainty, “though its allegations be in form uncertain, incomplete, and defective.” We think the court ruled properly in holding that the reply put in issue the allegations of the defendant’s counterclaim for damages. Manning v. School Dist. No. 6, 124 Wis. 84, 102 N. W. 356. The trial court determined that plaintiff was not liable in ■damages to defendant upon the alleged counterclaim for delay in furnishing the iron, upon the ground, apparently, either that plaintiff was not guilty of any delay in performing its ■contract to furnish the iron for this building, or, if guilty of •delay under the original contract, that all damages covered by it were waived on September 1, 1902, under the modification •of the agreement which provided for enlarging the structure and for an additional consideration of about $20,000. This contract, however, makes no provision for, nor do its conditions contain a waiver of, any damages which defendant may have sustained by reason of the delay in the construction of the building under the original contract; nor does it provide for payment of the damages incurred by way of payment for [38] time and labor to his subcontractors and laborers, or for the payment of the superintendent’s salary from September 1, 1902, which was in lien of the penalty incurred for failure to complete the building within the time fixed in the original contract. It is apparent that if defendant actually sustained losses on account of the delay in receiving the iron for the building, as he claims, he has not been paid such losses under the modified agreement of September 1, 1902. Plaintiff insists that, if defendant’s counterclaim is to be considered under the facts alleged, the evidence wholly fails to show that plaintiff was guilty of a breach of contract in furnishing and putting in place the ironwork for the building. • It was expressly specified that if a subcontractor failed in furnishing the material and labor “as it may be wanted to work into the building, he will be accountable for all delays and damages in consequence of any such neglect.” Plaintiff, as subcontractor, accepted this condition and was bound to comply with its requirements. It appears clearly that plaintiff was expressly directed by letters of July 6, 1901, to proceed to procure the iron material required by the plans and specifications under their contract of the preceding May 27th, and on July 26th was notified to furnish the basement gratings immediately and to provide for floor beams. In the early part of the summer of 1901 the work of construction had been completed to a point where the iron was needed to enable defendant to continue the construction. Plaintiff failed to furnish such iron until the latter part of November, when the building season had practically closed. Under the facts and circumstances of the transaction we are unable to find any ground for saying that this delay by plaintiff could in any conceivable way be deemed permissible under the contract. It is obvious that the parties understood that, in the regular course of constructing the building, the iron would be needed to work into the building in the early part of the season of 1901. In view of these circumstances it must follow that [39] plaintiff became liable to defendant for any damages suffered on account of delay in furnishing the iron. It is insisted that plaintiff did all it reasonably could to supply the iron as it was needed, and that it was unavoidably delayed by the manufacturers in manufacturing and forwarding it. There is no stipulation in the contract malting such inability to secure the material from manufacturers a condition excusing performance and relieving plaintiff from the consequences of nonperformance of its terms. The further claim is made that the conclusion of the trial court should be sustained upon the ground that plaintiff waived any right to recover damages upon the counterclaim by paying respondent $1,500 in September, 1903, after the completion of the work, and by failing to give notice, before making payment, of any claim for damages by the respective claimants. The evidence shows that the payment of $1,500 was made to plaintiff’s representative under circumstances which warranted defendant in believing that plaintiff accepted it through its representative on the condition that defendant’s losses would be adjusted thereafter. This leaves no-basis for claiming a waiver as against him upon this ground nor is defendant precluded from now insisting upon the coun--terclaim by reason of paying to his employees and subcontractors the amounts they actually lost by reason of plaintiff’s delay, without giving notice to plaintiff. It is argued that such notice should have been given to enable it to contest such claims before payment of them. The argument is, however;, fully answered by the fact that payment of these amounts in-no way establishes plaintiff’s liability for them to defendants It is incumbent on defendant to show that they are attributable to plaintiff’s breach of contract and are therefore items-of damages recoverable under his counterclaim. This preserves to plaintiff the right to contest them in every respect, regardless of any payment defendant may have made to third parties. [40] This brings ns to the question of whether the evidence sustains the counterclaim. An examination of it shows that all of the evidence material to these claims is practically uncon-tradicted. It appears that the tiling contractor, Burner, suffered damage amounting to $88, attributable to plaintiff’s failure to furnish the iron as needed in the course of the construction of the building. This defendant has paid and is entitled to recover. It also appears that defendant for the. same reason sustained losses for- time lost by masons and carpenters employed by him in the construction of the building, amounting to the sums of $324 and $260. The item of $315, paid as salary for the superintendent in the construction of the building after September 1, 1902, and deducted from the amount due defendant from the county after completion of the building, is a proper counterclaim, because the testimony establishes that defendant paid it for his failure to complete the building by September 1, 1902, in lieu of the penalty incurred by him under the original contract. As already stated there is practically no controversy but that under the facts and circumstances plaintiff’s failure to comply with its contract for furnishing the iron was the cause of defendant’s inability to complete the building by September 1, 1902. The remaining item of defendant’s counterclaim is $3,000, the value of his time spent in the performance of work after September 1, 1902. lie insists that this item should be allowed him upon the certificate of the superintendent given as of July 1, 1905. It is averred that the specifications provide for the appointment of a superintendent, and that he should give all certificates to which the contractor should be entitled, and should determine “the amount of damages which may have accrued from any cause,” and that his certificate and decision should be binding and conclusive in all matters. These provisions were manifestly intended to apply to and bind the county and defendant, as the principal contractor in the construction of the building. The terms of this stipulation do [41] not indicate, however, that it is to be deemed a part of a subcontractor’s undertaking, and plaintiff’s agreement does not expressly provide that it shall be part of it. The situation is not within the decision of Stein v. McCarthy, 120 Wis. 288, 97 N. W. 912, where the terms and conditions of the specifications and original contract were included as part of the obligation assumed by the subcontractor. It is therefore to bp determined whether, under the facts and circumstances of the transaction, plaintiff is entitled to recover on this item of the counterclaim. As stated, under the agreement of September 1, 1902, he undertook to construct the parts of the building not included in the original contract for an additional consideration of $19,717. As so modified, the defendant performed his contract within the year following the expiration of the time originally agreed upon for the completion of the building. Having undertaken to build the parts of the building added to the original structure, it follows that the time necessarily occupied in doing this is not to be charged as additional to the time required for completion of the work originally undertaken. If any claim for damages for defendant’s time can be made, it must be for time lost in performing the work of the original contract, and defendant has not shown that he lost any time before the expiration of the original contract, nor has he attempted to show that he spent extra time thereafter in completing the work covered by the original contract.. Under these conditions there is a want of proof to sustain this item of the counterclaim. Upon these considerations the judgment must be reversed, .and the cause remanded with directions to the trial court to .award judgment to defendant, allowing him the items of damages in his counterclaim as above specified. . . By the Court. — It is so ordered.