Buchholz v. Rosenberg

The following opinion was filed March 14, 1916: WiNSLOW, C. J. The court found in effect that the contract was substantially performed notwithstanding the fact that the roof and basement floor did not correspond to the specific calls of the contract. While it is stated in appellant’s brief that this finding is not justified, he assigns no error on this ground and states that he does not press the point, hence the question is not an open one in the case. We start, therefore, with the established fact that the contract was substantially though not exactly performed, and this means that both the roof and the floor were serviceable and fit for the purposes intended. This must be so, for otherwise there could not be substantial performance. Starting from this premise, the fundamental inquiry is whether the court made the proper deductions from the contract price on account of these failures in exact performance. There is no doubt as to the proper rule in this court. It may be stated as follows: If the defect can be remedied without reconstructing a substantial part of the building or, as otherwise expressed, without great sacrifice of work and material already wrought into the building, the reasonable cost of correcting the defect should be allowed; if otherwise, the di [315] minisbed value of tbe building, on tbe basis of tbe contract price, by reason of tbe defect. Sherry v. Madler, 123 Wis. 621, 101 N. W. 1095; Manning v. School Dist. 124 Wis. 84, 102 N. W. 356. Tbe roof actually put on was a felt or asphalt paper roof. To take this off and put on a tar and gravel roof would not involve any reconstruction of tbe building or great sacrifice of inwrought material, hence tbe court, instead of allowing $80, should have allowed on this item tbe expense of a new gravel roof, which was shown to be $120. It is apparent that to equip tbe building with a floor such as tbe contract requires would necessitate tbe reconstruction of a substantial portion of tbe building and tbe sacrificing of much work and material already wrought into it, hence tbe second branch of tbe rule applies to tbe floor and tbe allowance must be tbe diminished value. Tbe court placed tbe allowance to be made for tbe defective floor at $60, but there is no testimony oü which that finding can be based. It appeared without dispute that tbe floor cost $290 and there was testimony that it was worth that sum. One witness testified that a new floor constructed according to tbe specifications of tbe contract would cost $467.27, while tbe defendant Riemen-schneider estimated tbe cost at $385. This testimony would afford basis for a finding that the diminution in value was tbe difference between tbe value of tbe old floor and tbe cost of tbe new, but not for a finding of any less sum. This would mean that tbe court should have allowed not less than $95 nor more than $177.27 on account of tbe floor. Tbe court in fact allowed $60. Tbe appellant would have bad no ground of complaint as to this item bad $177.27 been allowed instead of $60. We deem it better for both parties to modify tbe judgment and make tbe proper allowance, now and thus close the litigation, rather than prolong it by sending tbe case back for a new trial or to take further testimony. Two further contentions are made: first, that costs should [316] not bave been allowed against the garnishee, and second, that interest should not have been allowed on the claim of Riem-enschneider against Rosenberg. Neither contention can be sustained. The statute gives costs if the plaintiff recovers more than the garnishee admits in his answer. Sec. 2772, Stats. 1913. As to interest, the case of Laycock v. Parker, 103 Wis. 161, 79 N. W. 327, is controlling. The judgment must be modified as of its date so as to adjudge that Rosenberg was indebted to Riemenschneider at the date of the commencement of the garnishment action July 25, 1913, in the sum of $401.73 (plus interest at six per cent, from January 20, 1911), amounting in all to $462.32; that the plaintiff recover that sum from the garnishee with interest from February 6 to February 25, 1915, amounting in all to $463.62; and that he recover his costs as taxed, amounting to $44.40, making a total recovery as of February 23, 1915, of $508.02; and as so modified the judgment must be affirmed. By the Court. — Judgment modified as indicated in the opinion, and as so modified affirmed, without costs, except the fees of the clerk of this court to be paid by the respondent. A motion for a rehearing was denied, with $25 costs, on May 23, 1916.