Kretschmar v. Bruss , 108 Wis. 396 ( 1900 )

WiNsnow, J.

The evidence not having been brought to this court by a bill of exceptions, the only question is whether the pleadings and findings sustain the judgment. Wille v. Bartz, 88 Wis. 424.

The findings show that both the building contract and the contract of guaranty were breached by failing to protect the plaintiff against subcontractors’ liens. The court, however, relieved the sureties from liability because alterations had been made in the plans and in the building, which increased the contract price in the sum of $467. As will be seen by reference to the statement of facts which precedes this opinion, the building contract itself provided that alterations may be made in the plans and specifications, either by way of addition or deduction, without vacating the contract, and that the value of such additions or deductions shall be estimated by the'superintendent and added to or deducted from the contract price, provided that the order for such change shall be in writing. The sureties agreed to guaranty the performance of the contract as it stood. This provision was one of the essential parts of the contract. It was plain and unambiguous. Ity their agreement of guaranty they undoubtedly expressly recognized and approved all material parts of the contract and assented in advance to changes or alterations in the plans which might be ordered in writing and which were fairly within the meaning of the provision. Hayden v. Cook, 34 Neb. 670. Probably changes which would completely change the character of the building, as from a dwelling house to a shop, would not be “ alterations ” within the meaning of the contract; but that question is not now before us. No such changes are found to have been made. The court found that alterations which increased the original contract price ($3,733) by the sum of $467 constituted such an increase in the contract price as to be a material change of the contract, and hence released the sureties.

To this conclusion we cannot agree. The changes are not described, and not found to have been anything’beyond or outside of the proper scope of the term “ alterations ” as used in the contract. The building evidently remained the same building in character as the one contracted for, with alterations increasing the expense. But it was contemplated and agreed that the expense might be increased by alterations ; hence the mere increase of expense, at least to the amount here found, manifestly releases no one.

But it is said that the changes were made by oral direction, and not in writing, as provided by the contract. There is, however, no finding to this effect. The finding is that changes and alterations were made by direction of the plaintiff and his architect, and that the amount thereof was estimated at their proper value by the architect and superintendent, to wit, at the sum of $467. The necessary inference from this finding must be that the changes were ordered in writing because tbe contract expressly prohibits the making of any change or the making of any allowance therefor unless the order be given in writing, and we cannot presume a violation of this provision which is not found. Upon the findings, the sureties should have been held liable equally with the principal.

By the Goxvrt.— That part of the judgment appealed from is reversed, and the action is remanded with directions to enter judgment against the sureties for the same amount for which the principal was found liable.