Opinion
September 6, 1961 —
October 3, 1961.
APPEAL from an order of the county court of Jefferson county, civil court branch: L. L. DARLING, Judge. Affirmed.
For the appellants there was a brief by Smith, Miller Eberhardt of Jefferson, and oral argument by Richard C. Smith.
For the respondent there was a brief by Skinner Thauer of Watertown, and oral argument by Richard C. Thauer.
An action for reformation of two lien waivers executed by the plaintiff, Alfred L. Krause, under dates of April 9, 1959, and May 20, 1959. The plaintiff-respondent, a building contractor, agreed orally prior to December 1, 1958, to construct a house for the defendants-appellants upon real estate owned by them in the village of Johnson Creek. The plaintiff commenced work on this house on December 1, 1958, and completed it on or about June 4, 1959.
On April 9, 1959, and again on May 20, 1959, the plaintiff gave the defendants a waiver of lien for work accomplished to date as well as for all labor and materials to be furnished in 'the future. The two waivers did not include a property description. On October 28, 1959, the plaintiff filed a contractor's lien with the clerk of the circuit court for Jefferson county against defendants' property in the amount of $5,942.41.
The original complaint was to foreclose the mechanic's lien and included the legal description of the property. The original answer admits the description of the property contained in the complaint and sets up a series of defenses in addition to the waivers of lien. The answer also requests dismissal of the complaint and for the establishment of the true indebtedness of the defendants after offsetting damages sustained by the defendants arising out of defective workmanship. A stipulation was entered into between the parties amending the plaintiff's complaint for reformation of the two waivers. The amended complaint alleged that the waivers were intended by the parties to waive any claim for mechanic's lien which the plaintiff had for work, material, and services furnished and performed by plaintiff prior to April 6, 1959, and that the waivers of lien were not intended to apply to or waive plaintiff's claim for mechanic's lien for any work, services, and materials furnished and performed by plaintiff on and after April 6, 1959. The demand and prayer for judgment ask that the waivers of lien executed by the plaintiff under dates of April 9, 1959, and May 20, 1959, be reformed so as to conform to the actual intention of the parties and not to act as a waiver for any work, material, and services furnished and performed on or after April 6, 1959.
The defendant moved for summary judgment and in support of his motion set up the two waivers of lien executed by the plaintiff.
The plaintiff's affidavit in opposition to the motion for summary judgment alleges that in April, 1959, the defendant requested waivers of lien for all work previously done and materials furnished by the subcontractors and informed plaintiff that this was done at the request of the banks holding the mortgage against the premises, and that the banks would not release the money until they had waivers. The plaintiff executed and delivered to the defendant the following waiver dated April 9, 1959:
"Whereas, I, Al Krause Construction Co., the undersigned, have contracted with Clarence Hartwig, Clarence Hartwig residence to furnish material and/or perform services, to enter in the erection, construction, alteration, and repair of certain improvements, now in progress or about to be begun, upon the following described real estate, situated in the county of Jefferson, state of Wisconsin, to wit:
"Shop materials and labor for December, 1958, January, February, March, 1959
"Materials $ 729.23 "Labor 8,056.50 -------- "$8,785.73 "Now, therefore, I, the undersigned, Al Krause Construction for and in consideration of the sum of $8,785.73, and other good and valuable consideration, the receipt whereof is hereby acknowledged, do hereby waive and release any and all lien, or claim, or right of lien, on said above-described real estate and on all buildings, improvements, and appurtenances situated thereon, or thereunto belonging, on account of labor or materials, or both, furnished or hereafter to be furnished by the undersigned to or on account of the said Clarence Hartwig residence for said building or premises."The second waiver of lien is identical with the exception of amount, date, and items covered.
Thereafter the defendant, Clarence Hartwig, told plaintiff that the amount of the waiver was not correct in that it did not correspond with charges previously billed to the defendants by the plaintiff. Subsequently the second waiver of lien for the additional amount was executed and delivered to the defendants. The plaintiff states that he prepared the two waivers of lien by filling in the blanks of a standard legal form, and that he did so without the benefit of legal advice or assistance. The printed clause contained in the legal form referring to labor or materials thereafter to be furnished was inadvertently and unintentionally allowed to remain in said form, and that the same was included therein without request by any of the defendants and without consideration. Due to an error, the claim filed for lien on October 28, 1959, stated the sum due was $5,942.41 and should have been $4,942.41, which is the total amount plaintiff claims to be due and owing for labor, materials, and supervision from April 6, 1959, to June 4, 1959. The affidavit further states that by executing the two waivers he did not intend to surrender any lien for work, labor, material, and services performed and furnished after April 3, 1959.
The trial court found there was a substantial issue of fact to be tried and denied summary judgment. It is from this order that the defendants appeal.
The sole issue is whether there is a substantial issue of fact to be tried.
Reformation is an equitable action and the main object of equitable jurisdiction is to effectuate the intentions of the parties to the instrument in question. A mutual mistake made by the parties to the instrument which would defeat such intentions should be corrected in equity for the purpose of putting in effect such an intention. This is necessarily so even though the parties knew what words were employed and their ordinary meaning. Shearer v. Pringle (1930), 203 Wis. 164, 233 N.W. 623.
The pleadings and the affidavits present a substantial issue of fact as to whether the waivers apply only to the work done prior to April 6, 1959, or whether they affect all work done to its conclusion.
The power of the courts under the summary-judgment statute, sec. 270.635, is well settled in the state of Wisconsin and needs no further review as pertaining to the facts in this case. For a review of the cases on summary judgment, see Voysey v. Labisky (1960), 10 Wis.2d 274, 103 N.W.2d 9, and Zezblatt v. Sampson (1961), 12 Wis.2d 303, 107 N.W.2d 122.
The order of the lower court is affirmed.
By the Court. — Order affirmed.