Laycock v. Moon

72 N.W. 372, 97 Wis. 59, 1897 Wisc. LEXIS 24

• Court: Wisconsin Supreme Court
• Decided: September 28, 1897
• Status: Published

Opinion

Newmah, J.

The plaintiff was bound, by his contract, to complete his job to the “entire satisfaction” of the defendant and his architect. The defendant and his architect were reciprocally bound to make inspection of the work and materials, as the work progressed. They had the power to accept or reject work of materials, and to require unsatisfactory work to be redone in a satisfactory manner, and unsatisfactory materials to be removed and their places supplied-with other materials, such as should be in conformity with the contract, and satisfactory. This all clearly implies that the work and materials were to be accepted or rejected at the-time of such inspection, and during the progress of the work. It was no doubt intended, and the spirit of the contract implies, that work or materials which were not in conformity with the contract, and were not satisfactory, and, for that reason, were to be rejected, should be rejected at once, to-the end that all faults might be corrected without loss or detriment to either party. This provision was a prudent precaution against the surprise of a suppressed dissatisfaction sprung at the end of the work. It was intended to-' prevent such surprises by requiring inspection pari passu, as-the work went on, and a prompt rejection of either work or materials not conformable with the contract. This provision of the contract was, in effect, an affirmative stipulation by the defendant to accept or reject, as the work progressed, such as should be deemed not conformable with the contract, and unsatisfactory. Failure to express dissatisfaction as the work progressed might fairly be interpreted as acceptance. Such acceptance must be deemed final and irrevocable ; else the plaintiff may be lured on, by a delusive appearance, into expenditures for the completion of an expensive-work, which is foredoomed to rejection. This stipulation of the contract was intended to avert from him such ill-fortune.-

Clearly, the defects claimed in the foundation wall, such as too small footing stones and the absence of slushing of the mortar, were obvious to the stipulated inspection. It is also clear that whatever-dissatisfaction was expressed was heeded and the fault amended, so that no expressed dissatisfaction rested on the work as it progressed, or within a reasonable time after its completion. The architect expressed his entire satisfaction with the work. If the defendant failed at times to inspect the work, that may have been to his own loss. He must be bound, nevertheless, by the acquiescence of the architect who represented him. There was no conflict in the testimony which tends to show that the work was accepted, and the question needed not to have gone to the jury. Eor that reason it is unnecessary to examine the charge of the court. If wrong, it did thé defendant no harm.

Such matters relating to the completion of the work as the pointing, cleaning, and staining of the walls might be waived by the defendant. Apparently, they were so waived. At least, the verdict of the' jury must be deemed to have settled that question.

Ho reversible error is found.

By the Court. — The judgment of the circuit court is affirmed.