
    Herman L. Meyer et al. vs. William Berlandi.
    Argued April 18, 1893.
    Decided April 24, 1893.
    Pleading, Order of.
    In an action for extras upon a building, which was constructed under a contract for a gross price, if the complaint do not set out the contract, and it contain anything to defeat or diminish the claim for extras, it is for the defendant to set it up in his answer as a defense, and then for plaintiff in his reply to set up any matter in avoidance.
    Contract Prevails over Inconsistent Specifications.
    A building contract provided a mode of determining as to extras; the specifications, referred to by and made a part of it, provided a different and inconsistent mode. Held, that in the contract prevails.
    A Provision of a Contract Waived.
    Where the parties proceed throughout in entire disregard of such a provision, they must be held to have waived it.
    Evidence Offered, Properly Excluded.
    A party, while examining a witness, offered a document, saying that he offered it “in connection with the testimony of the witness.” Held that, as it could not possibly have any effect to explain or support such testimony, an objection that it was immaterial was properly sustained, even though the document contained evidence which might be material if offered generally.
    Verdict Sustained by the Evidence.
    Evidence held to sustain a verdict.
    Appeal by defendant, William Berlandi, from a judgment of the District Court of Bamsey County, William Louis Kelly, J., entered September 1,1892, against him for $1,358.08.
    Henry Wegmann and Henry Klemann, on February 11, 1887, made a contract with plaintiff to furnish the materials and build for him, above the foundation walls, a two-story brick building in West St. Paul, according to certain drawings and specifications. He agreed to pay them therefor $11,700. Defendant, during the progress of the work, directed many alterations and deviations from the original contract and specifications, and required of them extra work and materials. He paid the contract price. They assigned to plaintiffs, Herman L. Meyer and William Thompson, their claim for the extra work and materials, and they on April 1, 1892, brought this action to recover $3,873.20 therefor. They obtained a verdict May 24, 1892, for $2,030.60. Defendant moved for a new trial which was denied, on condition that plaintiffs remit the excess, over $1,358.08. This they did and judgment was entered for that amount. “Exhibit 19” mentioned in the opinion, was a bill of extra work and materials, furnished the defendant by the contractors. The discussion in this court was principally upon the evidence, whether it supported the verdict, and as to the materiality of portions thereof.
    
      Warner, Richardson á Lawrence, for appellant.
    
      James E. Markham, for respondents.
   Gilpillan, G. J.

As it is beyond dispute that the contract price for constructing the building was paid, the first cause of action set forth in the complaint need not be considered. The other causes of action are for extra work and material, and in their statement there is nothing to indicate that the claim for such items was controlled or affected in any way by the terms of the building contract. If that contract contained anything to defeat or diminish the claim for extras, it was for the defendant to allege it in his answer as a defense, and then for plaintiffs to set forth in their reply matter in avoidance of that defense. The answer sets forth the contract and the specifications, and claims that by the terms thereof the matter of extras was to be submitted to the arbitration of the architect, or of two arbitrators, one to be chosen by defendant, the other by the contractors, the assignors of plaintiffs, the two arbitrators, if they could not agree, to choose a third, and that except upon such arbitration there could be no claim for extras, and alleges that there had been none, except as to some items presented by the contractors and agreed on by them and defendant, in the presence of the architect. To this the reply alleges that, when requested by the contractors to submit the extras claimed to the decision of the architect or arbitrators, the defendant refused so to do. This was a sufficient avoidance of the alleged matter of defense so that there was no basis for defendant’s motion, before any evidence was introduced, that all evidence be excluded except as to the contract price and as to the extras admitted by the answer.

Tbe contract, which is separate from, but refers to and makes a part of it, the plans and specifications, provides that tbe owner may at any time direct in writing sucb alterations and deviations from tbe plan as be may desire, and that sucb deductions from or additions to tbe time of performance and tbe contract price as tbe parties at tbe time shall agree on in writing shall be made; and, if they cannot agree, then it shall be decided by two builders, one to be chosen by each of tbe parties, and sucb builders, if they cannot agree, shall choose a third person, not tbe architect, and bis decision shall be binding. Tbe specifications provide that tbe architect shall decide on tbe quantity, quality, and value of all materials and work furnished, offered, omitted, claimed as extra, or furnished by owner at bis option, unless a price for each item is agreed on in writing beforehand.

These provisions are inconsistent, because they designate different and inconsistent modes of deciding on tbe same matters, and tbe question is, which shall prevail? We think tbe provisions in tbe contract itself ought to prevail, because it is to be presumed tbe plans and specifications were prepared first, and that what tbe parties set down in tbe contract is tbe last expression of what their minds settled down to on tbe matter, and also because, it being matter of contract, tbe natural place for it, and where one would naturally look for it, is in tbe contract, and not'in tbe specifications.

Whether tbe allegations in tbe reply that tbe'defendant refused to submit tbe extras to arbitration were proved or not is immaterial, for tbe reason that there was no question on tbe evidence, and no question of pleading was made upon it at tbe trial, that both parties entirely disregarded tbe stipulations in tbe contract as to alterations, deviations, and extras, not merely as to tbe mode of ascertaining tbe values thereof, but tbe requirement that tbe request therefor should be in writing. They proceeded throughout without any reference to those stipulations, and must be held, therefore, to have waived them.

Tbe only ground of objection stated- to tbe witness Wegmann’s referring to defendant’s “Exhibit 19” to refresh his recollection was that it was made by him September 1st, which was at or about tbe time of doing tbe work, — indeed, as some of tbe evidence indicates, while it was going on. That it was properly verified was not hinted at as an objection, and of course cannot be considered now. Tbe objection was properly overruled.

Afterwards defendant, when the architect as his witness was under direct examination, offered in evidence the same exhibit, stating that he offered it “in connection with the testimony of this witness.” The witness had not testified with reference to anything contained in it, but had just stated, on its being shown him, that it was the first time he had ever seen it. From the purpose of the offer as stated the court had a right to assume, and doubtless did, that it was offered to explain or support the testimony that the witness had given, and, as it could not possibly have any such effect, it rightly sustained an objection that it was immaterial. Had the defendant claimed, as he does now, that it contained evidence favorable to him, he ought to have offered it generally, in which case the court would have been called on to examine it, and see whether it contained material evidence, or at least ought not to have indicated such a qualification of the purpose with which he offered it.

The other assignments of error are as to the sufficiency of the evidence. It was clearly sufficient to sustain the verdict, as it was when cut down by the court below.

Judgment affirmed.

(Opinion published 54 N. W. Rep. 937.)  