Whalen v. Eagle Lime Products Co.

WiNsnow, C. J. We meet tbe same difficulty in these actions as in tbe action of Cointe v. Congregation of St. John, 154 Wis. 405, 143 N. W. 180. Tbe statute requiring findings of tbe ultimate facts bas not been complied witb. Tbe-plaintiff brought tbe main action to foreclose a lien upon the-railroad, alleging that be bad fully performed bis contract. At tbe close of the evidence be was allowed to amend his complaint so as to allege that he was prevented from full performance by the refusal of the defendant corporation to pay tbe plaintiff on monthly estimates as tbe contract required, and by failure to furnish materials, and by reason of tbe direction of tbe company that be cease work. Tbe referee’s report finds that tbe plaintiff did not complete bis contract, but this finding only made tbe question whether tbe plaintiff bad been prevented from completing the-same by any act of tbe corporation more vital. Tbe ultimate facts in this regard were whether such completion bad been prevented by (1) tbe failure to make payments as the-contract required, (2) tbe failure to furnish materials as the contract required, or (3) an unjustifiable direction to cease work. Upon neither of these ultimate facts was there any finding, either by tbe referee or tbe court. This situation makes it necessary for this court to examine tbe evidence to-ascertain whether tbe judgmeirt is clearly supported by a preponderance of the evidence, and, if not so supported, to as-< certain whether the preponderance is so clearly tbe other way that judgment for tbe appellant should be ordered, or whether there should be a new trial in order to accomplish tbe ends of' [33] justice. Closuit v. John Arpin L. Co. 130 Wis. 258, 110 N. W. 222. It is very certain that the contract sued on in the first action was an entire contract and that it was never substantially performed. We shall spend no time on this question. When work to the amount of more than $3,000 remains to be done on a $10,000 contract, it would be absurd to say that the contract w;as substantially performed. Turning to the question whether the evidence shows that the plaintiff was prevented from carrying out his contract, either by failure to make' the stipulated payments or by failure to furnish the required materials, we are compelled to say, after careful study of the case, that neither fact is proven. The provision for monthly estimates was not regarded as essential or important by either party for the first two months. The company made large payments, which on December 19th amounted to $5,393.40. Both parties then seem to have agreed that an estimate of the work remaining to be done should be made by Mr. Blount, an engineer employed by the Chicago & Northwestern Eailway, and who was the engineer in- charge of the work. Mr. Blount made an estimate showing that the work still to be done amounted to $3,100. This was the only estimate made, and the plaintiff does not seem to have ever demanded another. On the basis of this estimate .there had already been done work to the amount of $6,950, of which eighty-five per cent, would amount to $5,901.50. At that time the defendant company had paid $5,393.40, leaving on this basis $514.10 as the amount then owing on the eighty-five per cent, basis. One week later the -defendant company made a written proposition to the plaintiff, offering to pay him this amount, and also offering to waive the eighty-five per cent, clause and pay plaintiff the entire-balance for work done at that time, as shown by the estimate of Blount, amounting to $1,042.50, but insisting that the [34] work must be completed and requiring consent of plaintiff’s bondsmen that this variation be made in the contract before making the payment. We are entirely satisfied from careful perusal of the evidence that the plaintiff’s claim that he was prevented from fulfilling his contract/ either by failure to make the monthly payments or by failure to furnish materials, is without any substantial foundation in the evidence. There was some delay in furnishing some of the materials which doubtless delayed the work for a time, but the claim that it prevented ultimate performance is entirely unsustained. The plaintiff’s own evidence is contradictory and confusing to a degree. At one time he says that if he had got his pay December 19th he would have finished the work; at another time that if he had been furnished the material he would have finished it; at another time that he did not complete it on account of lack of ties, spikes, and force of weather. It is admitted that about January 26th, and'after the defendant had again demanded that plaintiff proceed with the work, a gang of men in plaintiff’s employ were set to work spiking rails to ties; that the men quit work because Mr. Campbell (defendant’s manager) came along where they were at work and told the men that he would not be responsible for their pay. It is clear that at this timé the plaintiff had not concluded to abandon the work, and it-is equally clear that the materials necessary had been on hand for a considerable time, and that the only real obstacle in the way of the plaintiff was the fact that men would not work for him because they were afraid they could not get their pay unless the defendant company guaranteed it. The defendant company had never contracted to do this and was not obliged to do it. Not only does the evidence fail to prove that the plaintiff’s breach of contract was the result of defendant’s default, but it proves quite satisfactorily the reverse. We conclude that there can be no recovery upon the contract. The item of $25 [35] for extra work done at a cattle pass does not seem to be disputed, but it is quite plain that it would not be just to order a recovery for this item. In view of the circumstances the court must apply $25 .from the payments already made to the discharge of this item. We are urged by the appellant company to direct entry of judgment in its favor against the plaintiff for more than $4,000, being the sum which it claims it was obliged to pay out to complete the work over and above the contract price of $10,650. We have examined the evidence and concluded that the claim is untenable. The estimate of the engineer in charge, made in .December, was that the work could be completed according to the contract, for $3,700. The referee found that the necessary cost- of completion was $3,013.08. We are clearly, of opinion that the present claim of appellant contains large sums not properly within the field of necessary cost. Without enlarging on this question, we simply express our conclusion that upon no fair estimate could the cost of completion properly exceed the unpaid balance of the contract price. As to the second action, which involves a claim for grading and filling about the company’s plant, we shall state simply conclusions. While the complaint charged that the company and the defendant Lindwurm, together promised to pay for this work, and the court entered personal judgment for the amount of the work against both, we find no evidence that Lindwurm ever made such a promise or became personally responsible for the payment; hence the personal judgment against him cannot stand. •In other respects the judgment seems to be right. It was admitted on the trial that such filling was done to the amount of $405.30, and it seems to have been work entirely independent of the building of the railroad.. No reason is perceived why the plaintiff should not have a lien for that amount.. [36] A motion was made by tbe defendant company after the trial by the referee to consolidate the two actions, and the denial of this motion is alleged as error. The question of the consolidation of actions is always one of discretion with the trial court. Eau Claire F. & S. Co. v. Laycock, 92 Wis. 81, 65 N. W. 732. It is very much to be desired that where consolidation is possible it should be ordered by the trial courts in the interest of expediting litigation and decreasing the expense thereof. Inasmuch, however, as the conclusions which we have reached dispose of the main action favorably to the appellant and relieve it of any possible duplication of- costs, "the question becomes to all im tents and purposes academic, and we do not feel obliged to pass upon it in this case. So far as the action to foreclose the lien upon the railroad right of way is concerned, the judgment therein must be reversed with costs, and the action remanded with directions to dismiss the complaint. So far as the action to foreclose the lien upon the plant- is concerned, that part of the judgment adjudging a personal recovery against William H. Lind-wurm must be reversed without costs, and the remainder of the judgment must be affirmed with costs. By the Court. — It-'is so ordered.