Wagner-Larscheid Co. v. Fairview Mausoleum Co.

The following opinion Avas filed April 6, 1926: Rosenberry, J. The court found that there was a full performance of the contract; that the windows were excellent from an artistic viewpoint and wure executed in substantial compliance with the designs submitted by the plaintiff with the single exception "that they are of such darkening colors as to darken the chapel to such an extent that artificial light would be necessary during funeral services in said chapel,” and for that reason were not in substantial compliance with the contract. It is the contention of the defendant that the case is governed by sec. 121.76, Stats., being a part of the Uniform Sales Act, and cited Manitowoc S. B. Works v. Manitowoc G. Co. 120 Wis. 1, 97 N. W. 515. [361] We have examined the testimony tending to support the findings in regard to light with much care. One of the windows covered by the contract together with one of the corridor windows were produced upon the argument for the inspection of the court. Upon consideration of the testimony there is found what was to be expected in specifications for a work of art; they are indefinite, uncertain, and the whole matter was very largely within the discretion of the artist. Manifestly there cannot be drawings and specifications for a work of art in the same sense in which there can be drawings and specifications for a steam boiler. If so, the drawings and sketches would necessarily be works of art. It is undisputed in the case that from an artistic standpoint the windows are in every way an excellent production. It is also found by the court that they conform substantially to the water-color sketches made by the plaintiff. It also appears without dispute that it is impossible to reproduce with exactitude in glass a water-color sketch; that at best it can only be an approximation. There is no showing that if the windows had admitted the same amount of light per unit of area as admitted in the corridor windows, there would be sufficient light in the chapel so that one could read ordinary type. The windows were manufactured by the Gustav Van Treeck Studios of Munich, Germany. The manufacturer was directed as follows: “These windows are in the top of a small chapel and want to be light in color, but they must be rich in color. . . . We do not want any paint on the back of the glass, and very little on the front of the glass. Remember these windows are to give light. Color scheme (B) can be slightly on the reddish order, also they are not to have a lot of paint on the glass. The least amount of paint used, the better will we be satisfied.” There is no evidence that the windows as produced did not comply with the order. It was understood between [362] the parties at the time of the giving of the order that the windows were to be artistic in character and of a kind that would make them suitable for memorial windows, and the defendant advertised, solicited, and procured some orders for the resale of the windows at the sum of $300 apiece. It is manifest that the defendant could not have everything. It could not have an artistic stained-glass window and unimpaired light. When designs w'ere submitted and approved by the defendant and the windows properly executed in accordance with the design, the fact that they did not give as much light as the defendant desired to have, constituted no failure of performance on the part of the plaintiff, where there was no distinct undertaking by the plaintiff in that regard. If the windows had admitted a sufficient degree of light and had for that reason lost their artistic merit and been less desirable from an artistic standpoint, the defendant might then have rejected them on that ground. Where an artist is directed to produce a work of art in accordance with an approved design, the details of which are left to the artist, and the artist executes his commission in a substantial and satisfactory way, the mere fact that when completed it lacks some element of utility desired by the buyer and not specifically contracted for, constitutes no breach of the artist’s contract. There is considerable evidence in the record which indicates that the refusal to accept the windows was based upon capriciousness and a personal dislike of defendant’s executive officer for some of the officers of the plaintiff corporation whose connection was first disclosed to Mr. Pierce, one of the officers of the defendant company, after the delivery of the windows. It is considered that under the evidence in this case there was no implied warranty on the part of the plaintiff as to the amount of light which the windows would admit or that they would admit sufficient light to enable a person [363] to read. There being no express contract in that respect, the plaintiff substantially performed its contract and is therefore entitled to recover. . By the Court. — The judgment appealed from is reversed, with directions to enter judgment for the plaintiff declaring the same a lien upon the premises as prayed for in the plaintiff’s complaint. A motion for a rehearing was denied, with $25 costs, on June 21, 1926.