Martinson v. Brooks Equipment Leasing, Inc. ( 1967 )

The following memorandum was filed November 28, 1967.

Per Curiam (on motion for rehearing). Appellant does not challenge this court’s determination of the “extras” issue. His motion for rehearing looks solely to the issue of liquidated damages.

The contract' provided that the respondent’s engineer was to aid in obtaining approval of the swimming pool plans by May 1, 1965; and that the appellant was then to commence work immediately and to substantially complete such work by June 25, 1965. The contract then provided for $500 per day penalty for each day of delay beyond June 25th.

The circuit court held that “the contract specified a fifty-six-day construction period.” Appellant challenged this finding in his post-trial motion. However, in his appellate brief, he did not raise this issue. He directed his argument on this point solely to contentions that the delay in construction was respondent’s fault, and that in fact the pool was “operational and in use” within the fifty-six-day period. In effeet he conceded the lower court’s interpretation of the time provision, when he stated at page 14 of his brief:

“It should be noted that the pool was operational, and in use, within the contractual time limit of August 4, 1965.” (Emphasis supplied.)

This court assumed that the contract provided for a fifty-six-day construction period. Appellant now contends that the contract contains no such provision. However, the issue was not presented to this court on appeal, and should not now be considered on rehearing.

In Hope Acres, Inc., v. Harris (1965), 27 Wis. 2d 285, 300a, 134 N. W. 2d 462, 135 N. W. 2d 775; Bump v. Dahl (1965), 26 Wis. 2d 607, 616a, 133 N. W. 2d 295, 134 N. W. 2d 665; Uren v. Purity Dairy Co. (1948), 252 Wis. 446, 459a, 459b, 32 N. W. 2d 615, 33 N. W. 2d 213; and State ex rel. Wisconsin Trust Co. v. Phelps (1920), 172 Wis. 147, 154, 176 N. W. 863, 178 N. W. 471; rehearings were denied, because a matter had not been raised in either the trial to the lower court or in the appeal to this court. Here, the issue was raised in the lower court but not on the appeal. Nevertheless we deem appellant has waived the right to now raise the issue by motion for rehearing. See 5 C. J. S., Appeal and Error, p. 547, sec. 1421 (a).

Appellant’s second argument is that the contract entitled him to 95 percent of the contract price upon substantial completion. The contract did, but Article 26 of the General Conditions of the contract provides that all or part of any payment may be withheld to the extent the architect shall reasonably believe necessary to protect the owner from loss on account of defective work, claims filed, failure of the contractor to pay subcontractors, or a reasonable doubt that the contract could be completed upon the balance then unpaid.

The record reveals that appellant stopped work on August 5, 1965. The only request for payment which appears in the record was made August 9, 1965. His brief, however, refers to a request made on August 3d. Article 24 of the General Conditions provides that itemized requests for payment be made ten days before they fall due. Thus, appellant had no right to stop work August 5th-8th even if he had made a request for payment on August 3d because of an alleged refusal by respondent to pay him money due and owing. As of those dates nothing was due from respondent to appellant.

The motion for rehearing is denied without costs.