Appellant complains of the following defects and faulty workmanship: Failure to provide slip-expansion joints on the fascia; the using of one-inch-square tubing instead of wrought-iron three-quarter-inch bars on the metal railing of the roof; failure to paint the underside of all tin and galvanized-metal work; failure to provide a gravity-type screened vent above the roof; failure to design the roof to provide sufficient ventilation to prevent condensation; construction of a window on the first floor of the building so it did not open; designing of the building so an interior partition wall abutted the window and could be seen from the outside; failure to soundproof certain interior walls; raising the elevation of the building 11 inches higher than originally planned, and failure to complete the first floor of the building for occupancy by October 1, 1959.
Relying on Plante v. Jacobs (1960), 10 Wis.2d 567, 103 N.W.2d 296, the appellant claims the contractor did not substantially perform his contract, especially in reference to the failure to soundproof certain interior walls in accordance with the plans and specifications. In the Plante Case, we stated substantial performance as applied to the construction of a house did not mean every detail must be in strict compliance with the plans and specifications and something less than perfection was the test unless all details were made the essence of the contract. We also pointed out there may be situations in which some features or details of construction were of such special or great personal importance that if not strictly performed would prevent a finding of substantial performance of the contract. In the instant case, specifications for several interior walls called for sound-proofing
There is evidence to the effect the acoustical properties of the wall as finally constructed were the equivalent of a wall built according to the plans and specifications. The owner intended this building to be a multipurpose building and the building was planned and constructed so it could be converted into apartments. The soundproofed wall on the first floor divided future apartments. The failure to follow the plans and specifications in view of the corrections used and the result obtained cannot be said to amount to a failure to substantially perform the contract within the rule of the Plante Case. The means of soundproofing was not as important as the end sought to be attained. Soundproofing equal to that provided by Balsam Wool was achieved. The owner received a building substantially for which he contracted and fit for the purposes and uses he expected to make of it. Much-more compliance is found in this contract than was found in the Plante Case.
It is argued that slip-expansion joints were omitted from the metal flashings. The contract provided for copper flashings, fascias, and copings with slip-expansion joints and for an alternative substitution of tin and galvanized iron. The appellant chose the alternative and saved some $440. There
The specifications required the metal railing on the roof to be wrought-iron three-fourth-inch bars welded. Instead of this, one-inch-square tubing was used. There is a dispute over the meaning of wrought iron. Assuming this to be a minor breach of the contract, no damages were proven because of the substitution.
All tin and galvanized-metal work was to be painted on the underside with iron mineral paint, which was not done. It is claimed the paint on the metal work is peeling off because there was no undercoating. Damages of $15 were proven and allowed by the trial court. The appellant claims this is not sufficient compensation but under either the cost-of-repair or the diminished-value rules there is no proof of damages in excess of $15.
The appellant claims the ventilator on the roof above the dry-cleaning unit was not an approved-type gravity ventilator, but rather a cap on a ventilator with no screen. There is dispute in the evidence whether the ventilator supplied complied with the plans and specifications. The cost of replacing this ventilator with one acceptable to the appellant was not proven.
The trial court held there was no delay in the completion of the first floor of the building by October 1st for which the contractor was responsible and time was not of the essence of the contract. The contract provided the construction work should be substantially completed by October 1st and "the first floor to be finished first and must be fully ready for occupancy by October 1, 1959." The appellant could not occupy the first floor until the end of November and suffered damages of $250 because of the delay. It is
A delay which is not the fault of the promisor does not necessarily relieve him from liability for damages. Parties may contract with reference to supervening difficulties. The wording of this contract in the light of accompanying circumstances manifests an intention the first floor of the building would be fully completed and ready for occupancy on October 1st although the building as a whole might not be substantially completed. We are unable to read into this contract an implied condition qualifying the contractor's promise of performance because of matters beyond his fault or control. Delays by the other contractors and weather were matters to be anticipated. We view this case as one of unanticipated difficulties which do not relieve the promisor rather than of supervening impossibility which would. See Restatement, 2 Contracts, p. 882, sec. 467, especially
In Case No. 69, involving the architect, the trial court held the architect was not negligent in supervising the construction of the building or in designing it. It was established by the evidence that condensation formed and leaked into one of the rooms and if more ventilation between the roof rafters had been provided, this would not have happened. The design of the roof, however, was held by the trial court to be proper. The appellant also claims a window on the west side of the building could not be opened and a partition of an interior wall overlapped or could be seen through the window. This detail of construction was shown on the blueprints. We do not, however, believe this to be significant because a lay person cannot be expected to be able to read blueprints and thereby estop himself. The evidence supports the trial court's finding this design was proper and used in this type of building. Much of the record is taken up with testimony concerning the necessity of constructing the building 11 inches higher in elevation than originally planned due to the depth of the city sewer. The evidence is conflicting and we cannot find the trial court's findings in favor of the architect were against the great weight and preponderance of the evidence.
The appellant strenuously argues the architect was negligent in failing to properly supervise the construction of the building. The evidence shows there was more supervision than usual in contracts of this type in the Sheboygan area. However, such supervision does not excuse the architect in allowing the interior walls which were to be soundproof to be built by the contractor as they were. Regardless of the amount or frequency of inspection, an employee of the architect did notice the noncompliance with the specifications by the contractor.
The appellant argues the difference in value of the building was a jury question and to have adduced testimony as to this difference would be invading the province of the jury. There is no merit in this argument. Neither a court nor a jury as the trier of the facts can determine damages by speculation or guesswork. The trier of the fact may make a reasonable estimate of the damage based on relevant data and evidence, but such evidence is lacking in this case. Damages must be proven with reasonable certainty. Maslow
The last contention of the appellant concerns the number of peremptory challenges. Each of the parties was given three challenges. Relying on sec. 270.18, Stats., appellant claims he was entitled to three for each action as the two actions were combined for the purpose of trial only. We point out a distinction between the consolidation of two cases for the purpose of trial only and the situation contemplated in sec. 269.05, where two or more actions, which might have been joined, are consolidated into one action. Where actions are consolidated for trial they continue their separate existence and separate judgments are entered. Under sec. 269.05 the two actions become one action. This distinction became immaterial in this case because at the close of the trial the parties waived the jury. The question of the number of challenges thereby became moot. We have given consideration to the other questions raised by the appellant in his brief, but in view of the disposition of this case, they need not be discussed.
By the Court.—The judgment in Case No. 68 is modified by reducing it by the further sum of $250 and, as so modified, affirmed; no costs on appeal to be taxed by either party. The judgment in Case No. 69 is affirmed; costs to be taxed by the respondent.