Geiger v. Ajax Rubber Co. ( 1922 )

Jones, J.

The plaintiff testified that with the two men and the outfit he had on the job he could easily have removed the obstruction by cutting it in sections, after the time he was ordered off, within five weeks’ time working ten hours a day — that is, within 300 hours. The trial court agreed with the sixth answer of the jury that the work was not performed in a good, workmanlike manner and with such care, skill, and diligence as are ordinarily exercised by men engaged in plaintiff’s line of work, but decided that the answer to the seventh question was entirely inconsistent with the answer to the sixth and that it was entirely unjustified by the evidence. It was further held that there must either be a new trial or that judgment should be awarded notwithstanding the verdict, and, since it was not probable that new evidence could be produced throwing light on the situation, judgment was directed for defendant.

It is urged by counsel for appellant that there was no inconsistency between the answers to the two questions, and, if they are inconsistent, that the latter answer,. being to a more specific point, should control the former. It is conceded by counsel for both parties that question No. 7 is not as definite as it might have been as to what would be a sufficient crew. Counsel for plaintiff argue that the .jury considered that a crew of two men was an adequate crew.

During the trial two' terms were used in this connection, namely, “rig hours” and “man hours,” and it is claimed by counsel for defendant that the jury probably had “man hours” in mind and concluded that 2,000 hours would have been sufficient.- In the brief of-plaintiff’s counsel there is an elaborate and very ingenious argument that the jury accepted the time already spent by plaintiff when he was ordered to quit as time diligently and properly spent, and considered the additional time which would have been necessary to remove the obstruction from the well by cutting and removing the pipe and the necessary preparations therefor, and by this process made their estimate of the 2,000 hours. Counsel for the defendant maintain that if this view of the manner, in which the jury reached its result in the seventh question is adopted the figures show that the labor cost would be about $7,000, while labor cost charged by plaintiff was $5,050, and that after making full allowance for the completion of the job, based on plaintiff’s own testimony, there would be a balance of $900 more than the contract price for the labor performed and to be performed to complete the job.

It is evidently impossible to determine the exact process by which the jury reached their conclusion in answering the seventh question. There is no ambiguity in the sixth question or the answer. In the answer to this question the word “workmanlike” does not stand alone: it is joined with the words “care, skill, and diligence.” By their answer the jury found that proper methods and practice and diligence had not been used in the conduct of the work. This was not negatived by the other findings that proper equipment had been used and competent men employed, since there was considerable evidence to the effect that, on complaints being made, the plaintiff himself had not taken proper steps to expedite the work.

No time was specified in the contract for the completion of the work, and it is conceded by defendant’s counsel that plaintiff was entitled to have a reasonable time for. that purpose. On the other hand, it was the duty of plaintiff, implied in his contract, to prosecute the work with due diligence and such degree of knowledge and skill as is commonly exercised by other persons engaged in the same line of business. Bishop, Contracts (2d ed.) § 246; 13 Corp. Jur. 560.

It is our view that, whether the theory of plaintiff's counsel or that of defendant’s counsel be adopted, the two answers are inconsistent, and that on that point there was no error in the decision of the trial judge. We also consider that there was not credible evidence to support the answer to the seventh question even if the theory of plaintiff’s counsel is adopted. From some time in July until December 20th plaintiff was attempting to lift the obstructions. On the first day they were raised forty feet, but after that no progress whatever was made. The plaintiff, was an expert in this kind of work, including the two methods generally adopted. The defendant and its engineers had no such experience and could only rely on the plaintiff’s judgment.

It is claimed by plaintiff’s counsel that this kind of work is attended with many difficulties and uncertainties and that contracts relating to it should be liberally construed. This may be conceded, but we cannot adopt the view that plaintiff, as an expert, responsible for the use of due diligence, was justified in continuing the experiment for nearly five months without making the slightest progress. Nor does it seem to us an adequate explanation that he was trying to save the equipment of which the obstructions consisted. The testimony showed that it was not of as much value as the price of one week’s work.

It is urged by plaintiff’s counsel that the trial court relied too much on the testimony of the expert Gray as to the amount of time which should have been used before resorting to the method of cutting the obstruction. But it appears from the decision and the testimony that the court based the ruling on that subject not only upon the opinion of the expert but also on the evidence given by plaintiff.

Exception was taken by plaintiff’s counsel because the court charged the jury in respect to the first three of the four questions submitted to the jury that the burden of proof was on the plaintiff. Cases are cited in this connection where defenses of warranty and guaranty were pleaded. In this case the questions were in substance-whether the plaintiff had complied with the contract he had made, and to prove such performance the burden was on him. Froelich v. Christie, 115 Wis. 549, 92 N. W. 241; Western H. Co. v. Schmidt, 56 Wis. 681, 14 N. W. 822.

The following clause was part of the contract:

“The foreman of the job is to have all time sheets signed by some one in authority of the Ajax Rubber Company, each week, and these time sheets will determine the amount of time or the number of hours to be charged.”

Mr. Karlson was the chief engineer of the defendant, and during the time in question he signed the weekly time slips submitted to him by the foreman of plaintiff. It is urged by counsel for. appellant that defendant thereby waived objection to the time of performance, and that the acts of Karlson in this respect are conclusive on defendant and establish the amount of time to be charged. On this point counsel cite cases in which it was stipulated between the parties that payments should be made according to the calculations or estimates of a third person, or where the cost should be so determined, or where other facts were to be found by an arbitrator. In this class of cases the.terms of the contract justified the conclusion that the parties had agreed to submit matters about which there might be dispute to the judgment and discretion of the third person as arbitrator. Karlson was not an expert in this line of work and was not required to accept or reject work but only to certify to the correctness of the time sheets submitted by the foreman of plaintiff. The trial court correctly held that he was a timekeeper and not an arbitrator between the parties.

It is claimed that defendant waived any objection to the time or manner of performance by failing to make complaint as to the delays, and cases are cited in which buildings have been constructed and defenses have been interposed, and where recovery was allowed on quantum meruit. In the case before us defendant received no benefit whatever, but lost valuable time in the use of a well much needed in its business. Moreover, the testimony shows that frequent complaints were made and the defendant was often assured that the desired, result would soon be accomplished.

It is also claimed that “defendant waived any right to object to the manner or time of performance by the plaintiff, by the payment of $3,000 on March 1, 1920, without objection,” and appellant’s counsel cite on this point Bannister v. Patty’s Ex’rs, 35 Wis. 215. This was another case where the owner had had the benefit of the work done on the buildings although defects and delay were claimed. It was held that the owner had waived the production of certificates of the superintendent, although the contract contemplated that any claim for damages should- be determined by the superintendent as the work progressed. We do not consider that the facts in that case are at all similar, to those in the one before us. Here there were no benefits received and.no acceptance of a job. The defendant paid the $3,000 possibly hoping to avoid litigation and assuming that it was as much as plaintiff was'entitled to receive. We do not think under all the circumstances that it thereby waived the defense made. The trial court stated the mode by which the conclusion was reached as follows:

“It is my judgment that the time expended by plaintiff in attempting to determine whether he could remove the obstructions by lifting them was unreasonably long as a matter of law; that any time expended in excess of 100 hours, at an expense to the defendant of $350 in addition to fuel, lubricating oil, and light, would be unreasonable. Adding to that 300 hours, in which the plaintiff himself says he could have removed all the obstructions, including the obstructions which he himself had dropped therein, and 100 hours for loading and setting up the equipment and taking it down, would, in my judgment, constitute the utmost that he would be entitled to claim had he completed the work he undertook to perform, conceding he acted in perfect good faith in the matter, and there is some quite persuasive testimony that the work was intentionally prolonged for the profit in the undertaking. These 500 hours at $3.50 an hour would amount to $1,750; add to that the 501 hours extra labor at $1 an hour would malee $2,251, and add to that the expense of transportation of the outfit would still leave the plaintiff overpaid by several hundred dollars, even had he removed the obstructions, by the voluntary payment of $3,(300, which the defendant made to the plaintiff before the commencement of the action.”

With that conclusion we agree.

By the Court. — Judgment affirmed.