#### Manthey, Respondent, vs. Manger and wife, Appellants.

*October 28*

November *18, 1913.*

*Building contracts: Substantial performance: Reasonable value of worlc done.*

In an action for tlie reasonable value of materials furnished and work done in decorating a dwelling house, findings of a referee, confirmed by the trial court, to the effect that, although the work was not first class, yet it was a fairly good job; that ihe defects therein were due in part at least to conditions over *52which plaintiff had no control; and that it was reasonably worth a certain sum, are *helé*to he supported by the evidence and to sustain a judgment in plaintiffs favor for the value so found. *Manthey v. Stock,*133 Wis. 107, distinguished.

Appeal from a judgment of the circuit court for Milwaukee county: LawRENCE W. IIalsey, Circuit Judge.

*Affirmed.*

Tbis action was brought to recover for services performed and material furnished in decorating the premises belonging to the defendants. The plaintiff alleged^ a special contract to do the job for $310, and also alleged that he performed extra work and furnished material not included in the first contract which are reasonably worth $345, amounting in all to $655, for which he demanded judgment and a lien.

The answer denied the contract set up in the complaint and set up a different contract. The case was referred and the plaintiff permitted to amend his complaint by striking out the allegation that the work was to be done for $310 and substituting in lieu thereof that the work was performed and materials furnished at the special instance and request of the defendants and that the defendants agreed to pay the plaintiff what the same were reasonably worth.

The referee found all the facts in favor of the plaintiff, and found among other things that, had the work been done in a first-class manner, the reasonable value would have been $550, but that as actually performed, if the nails in the cove had been properly protected, is of the value of $450, to which the plaintiff is entitled in addition to the extra work as-hereinafter mentioned; that after the work was completed changes were made and extra work performed at the request of the defendants which was reasonably worth $75; that the reasonable cost of boring out nail holes in the cove in reception room, parlor, and upper stairway, and puttying up the same and properly redecorating the cove (hereinbefore referred to), is.of the reasonable value of $25, and that the de-*53feud ants are entitled to have an allowance for tliis work in suck sum; that there became due and owing to the plaintiff for the work and labor so performed $525, less a setoff of $25 due to defendants as above found, leaving a net sum of $500, with interest from tbe 5th day of October, 1910, no part of which has been paid, and that there still remains unpaid $500, with interest as aforesaid. Further findings are made respecting plaintiff’s right to lien and the following

*Conclusions of Law.*

“1. That the plaintiff is entitled to have his complaint amended by striking out the allegation therein that part of the work and labor performed and materials furnished were performed and furnished under a contract to do the same for the sum of three hundred and ten ($310) dollars, and by alleging that such work performed and materials furnished were performed and furnished at the special instance and request of the defendants, and That the defendants agreed to pay the plaintiff therefor what the same was reasonably worth.

“2. I find that the plaintiff is entitled to judgment for the sum of five hundred and twenty-five ($525) dollars, less a setoff of twenty-five ($25) dollars in favor of the defendants, or for the net sum of five hundred ($500) dollars, with interest thereon from the 5th day of October, 1910, for such work and labor performed and materials furnished.

“3. That the plaintiff is entitled to have the same adjudged a lien upon said, premises described in the complaint, and that the interest of the defendants, *Arthur Manger*and *Clara*Manger, owning such premises at the time of the commencement of the work and the furnishing of the materials for which the lien is claimed, or which they, or any person claiming under them, have since acquired, be sold to satisfy the amount of the lien so ascertained and adjudged.

“4. And let the usual judgment be entered therefor, with costs and disbursements, as demanded in the complaint.”

Due exceptions were filed to the report of the referee and motion made by defendants to alter and amend said report; also ,a motion was made by plaintiff to confirm; and the court *54confirmed tbe report of the referee and judgment was entered accordingly in favor of tbe plaintiff, from wbicb this appeal was taken.

*John J. Maher,*for tbe appellants.

*Charles F. Puls, Jr.,*for tbe respondent.

EjsRwiN, J.

Tbe referee made very full and exhaustive findings and found all tbe facts in favor of tbe plaintiff. Tbe court below confirmed tbe report of tbe referee, and if tbe findings are supported by tbe evidence tbe judgment below must be affirmed.

After tbe complaint bad been amended tbe action stood to recover for materials furnished and services performed what the same were reasonably worth and to foreclose a lien on the premises. Tbe referee found tbe work and labor done and materials furnished reasonably worth $450, less a setoff of :$25, and also found other work for changes in addition to tbe $450 job in tbe sum of $15, making in all $500 as tbe reasonable value of tbe work done and materials furnished.

Tbe contention of tbe appellants is that they were entitled to first-class work and that the job was not first class. The referee found that tbe job was not first class, but found its reasonable value, and the complaint as amended was for recovery of tbe reasonable value. Tbe findings and tbe evidence show that the defects in tbe work were not wholly the fault of respondent. The referee found that tbe defects in tbe work were due partially to tbe fact that tbe walls and ■ceilings are not in a perfect plane, particularly tbe walls of tbe hallway upstairs are uneven, and other parts of tbe walls and ceiling are uneven. Tbe referee found defects were trifling and would pass unnoticed to tbe casual observer and that no part of the work is worthless'. Tbe findings, wbicb *go*into detail in describing tbe work and its character, show that tbe job is a fairly good job and worth tbe amount awarded to plaintiff. There is evidence that tbe job could *55be put in a first-class condition for about $125. One witness testified that the difference between the value of the entire job if completed in a first-class, workmanlike manner and its value as completed by respondent is $125. Another witness testified that the defects were not due to the work of respondent, but that they were due to the condition of the plaster.

Appellant relies upon *Manthey v.*Stock, 133 Wis. 107, 113 N. W. 433. We think the facts in the instant ease distinguish it from the *Manthey Case.*The defects in the work in the instant case were due in part at least to conditions over whichr" respondent had no control. The work is shown by the evidence to be of the value found and can by the expenditure of about $125 be put in good condition. We think the findings are supported by the evidence and support the judgment.

*By the Court.*— The judgment is affirmed.