Opinion
February 8, 1962 —
March 6, 1962.
APPEALS from a judgment and an order of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the appellant there were briefs by Irving A. Puchner, attorney, and Martin J. Torphy and Harold W. Story of counsel, all of Milwaukee, and oral argument by Mr. Puchner and Mr. Torphy.
For the respondent there was a brief by von Briesen Redmond, attorneys, and George F. Redmond and John J. Burke of counsel, all of Milwaukee, and oral argument by George F. Redmond.
This is an action by Helen Eloise Tullgren against School District No. 1 of the village of Whitefish Bay to recover damages for breach of contract. The case was previously before this court on an appeal from an order of the circuit court sustaining the school district's demurrer to the complaint. That order was reversed by this court in Tullgren v. School Dist. (1959), 6 Wis.2d 481, 95 N.W.2d 386.
The plaintiff originally brought her action alternatively against the school district and Roger M. Herbst, executor of the estate of William G. Herbst. Prior to trial a stipulation, pursuant to a settlement, was entered into between Roger M. Herbst and the plaintiff providing for dismissal of the action against Herbst. The school district then moved to dismiss the action as to it on the ground that the settlement with Herbst, an alternative defendant, was a satisfaction of the plaintiff's entire claim for damages and the order dismissing as to Herbst was in effect an adjudication of any claim the plaintiff might have had against the school district. The trial court took the motion under advisement and the case proceeded to trial.
After trial to the court without a jury, the circuit court filed findings of fact and conclusions of law to the effect that the school district had not violated any contract. A judgment in favor of the school district was entered dismissing the plaintiff's complaint on its merits. From this judgment the plaintiff appeals. The trial court also entered an order denying the school district's previous motion to dismiss. The defendant appeals from that order.
The plaintiff, Helen Eloise Tullgren, is the widow and sole heir of Herbert W. Tullgren, deceased. She is also the executrix of his estate and the sole beneficiary under his will. During his lifetime Mr. Tullgren was engaged in the practice of architecture. In 1929 Mr. Tullgren was employed by the defendant school district, pursuant to contract, as an architect for the construction of the Whitefish Bay High School. He made a general design and completed detailed plans and specifications for the construction of an entire high-school building. The high school was divided into five units, designated A, B, C, D, and E.
In 1931, because the school district desired to proceed only with the construction of unit A, Mr. Tullgren and the school district mutually agreed to rescind and cancel the 1929 contract. On September 23, 1931, a new contract was entered into between Mr. Tullgren and the school district. Mr. Tullgren was employed to perform all of the architectural services in connection with the construction of an entire high-school building, including units A through E. The 1931 contract contemplated the immediate construction of unit A and future construction of units B through E. Shortly thereafter unit A was constructed. Mr. Tullgren supplied the plans, solicited bids, and supervised the construction of unit A. He was paid his fees for these services.
In 1941 the school district wanted to construct unit C, which was to be a gymnasium. The needs of the school district at this time necessitated that new plans be prepared by Mr. Tullgren. A supplemental contract was entered into between Mr. Tullgren and the school district. This contract provided for the revision by Mr. Tullgren of the original plans for unit C. All other terms of the 1931 contract, except those with respect to his fees for unit C, were reaffirmed by the 1941 supplemental contract. Unit C was not built in Mr. Tullgren's lifetime. He died in February, 1944.
Paragraph 11 of the 1931 contract provided that, if Mr. Tullgren died, his personal representative would be entitled to assign Mr. Tullgren's interest in the contract to an experienced and competent architect, approved by the school district, "provided such assignee shall undertake and agree in writing to carry out all of the terms of this agreement by the architect to be kept and performed." The first sentence in paragraph 11 provided that the contract was assignable only as provided in such paragraph.
In late 1944 Mrs. Tullgren made arrangements to assign Mr. Tullgren's interest in the 1931 and 1941 contracts to Architect William G. Herbst. On December 12, 1944, by a written document, she formally assigned "all of the right, title, and interest of said Herbert W. Tullgren and his estate in and to certain contracts [the 1931 and 1941 contracts] to William G. Herbst. . . ." The assignment document, after providing for the assignment to Herbst, contained this statement:
"It is understood that this assignment is made in accordance with the terms of said contracts and particularly paragraph 11 thereof."
In addition to the assignment itself, which was signed by Mrs. Tullgren and two witnesses, there was an undertaking by Herbst in the following words:
"For and in consideration of the above and foregoing assignment, I, the undersigned William G. Herbst, covenant and agree to carry out and perform all of the terms of certain contracts [the 1931 and 1941 contracts] . . . being the terms of said agreement by the architect to be kept and performed."
This undertaking was signed by Herbst and witnessed.
On the same date that the written assignment and undertaking were executed, Mr. Herbst and Mrs. Tullgren entered into a separate contract. This contract recited in substance the assignment to Herbst and the undertaking by Herbst. Following this recital, paragraph 2 provided as follows:
"Second party [Herbst] agrees that upon his selection as architect by said school district, he will carry out all of the terms of the two contracts above referred to which are made a part of this agreement and any other contracts or agreements by him with said school district, and that he will not assign or abandon any contract or agreement made by him with said school district, nor make any settlement with said district for less than the contract price without the consent of first party [Mrs. Tullgren] in her capacity as executrix, or individually, after said estate of Herbert W. Tullgren is closed."
This contract between Mrs. Tullgren and Mr. Herbst went on to provide that Herbst would pay a certain percentage of the fees he received under the 1931 and 1941 contracts to Mrs. Tullgren. Mrs. Tullgren's entire interest in the 1931 and 1941 contracts was to be based on this separate contract with Mr. Herbst, except that under certain circumstances she could bring suit against the school district to force its compliance with the 1931 and 1941 contracts. Mr. Herbst was given the right to use the plans prepared by Mr. Tullgren, but title in them was to remain in Mrs. Tullgren.
The plaintiff contends that the assignment by her and the undertaking by Herbst, together with the separate contract between her and Mr. Herbst, were sent in one envelope by registered mail to an official of the school district. The school district denied that it ever received a copy of this 1944 contract or that it ever knew of its existence. It did acknowledge receipt of a copy of the assignment and undertaking.
The school district accepted the assignment of the 1931 and 1941 contracts to Mr. Herbst and the latter's undertaking. In 1948 Mr. Herbst and the school district entered into a new contract by the terms of which Mr. Herbst was to design and supervise construction of unit C of the high school. This construction was subsequently accomplished.
Paragraph 7 of the 1948 contract provided that the 1931 and 1941 contracts, of which Mr. Herbst was assignee, were "terminated and superseded by this agreement which shall constitute the entire understanding between the parties." The 1948 contract also provided that "this agreement shall terminate upon completion of the work." The term "work" was to mean "construction of a high-school gymnasium, sometimes called `unit C.'"
In 1955 the school district decided to construct another addition to the high school. The firm of Grassold-Johnson Associates was employed to perform architectural services. The latter firm prepared the plans and supervised the construction of classrooms and an auditorium. The plaintiff contends that the addition to the high school handled by Grassold-Johnson, architects, comprised units B and D of Mr. Tullgren's original plans. The school district contends that the new addition was not comprised of the original units B and D but was entirely different and was constructed from plans prepared by Grassold-Johnson and not from Mr. Tullgren's plans.
In 1957, Mrs. Tullgren commenced suit against Mr. Herbst and the school district for breach of contract. After the suit was commenced William Herbst died and the plaintiffs action was continued against his personal representative, Roger Herbst. The plaintiff and Roger Herbst negotiated a $15,000 settlement. A claim in the amount of this settlement figure was filed by the plaintiff against Herbst's estate. The county court allowed the claim and entered judgment on the claim. Then followed the order in this action dismissing as to Roger Herbst.
The trial court found as a fact that the school district had no actual knowledge of the 1944 Herbst-Tullgren contract, that it was not a party to the contract and was not bound by the contract. The trial court also found that Grassold-Johnson did not use Mr. Tullgren's plans and that the plans which were used differed materially from those of Mr. Tullgren. The trial court entered a conclusion of law that the school district had not broken any contract.
Three principal arguments are advanced by the appellant, Mrs. Tullgren. First, she contends that the assignment to Mr. Herbst on December 12, 1944, did not transfer all her interests in the 1931 and 1941 contracts. Secondly, she contends that the school district had notice of the separate agreement between herself and Mr. Herbst and, therefore, the termination agreement between the school district and Mr. Herbst in 1948 was a violation of her known rights. Finally, she claims that construction of subsequent units of the Whitefish Bay High School were built with plans similar to the Tullgren plans.
1. The Nature of the Assignment.
The assignment on its face was complete and unqualified. It disposed of all the right, title, and interest held by Mrs. Tullgren. In 6 C.J.S., Assignments, p. 1136, sec. 82, it is stated:
"As a general rule, a valid and unqualified assignment operates to transfer to the assignee all the right, title, or interest of the assignor in the thing assigned, but not to confer upon the assignee any greater right or interest than that possessed by the assignor. It passes the whole right of the assignor, nothing remaining in him capable of being assigned, and the assignor has no further interest in the subject matter of the assignment."
See also 4 Corbin, Contracts, p. 580, sec. 891.
In paragraph 11 of the agreement dated September 23, 1931, the right is given on death or incapacity to assign the contract. In our opinion, a fair reading of paragraph 11 makes it clear that only one assignment was contemplated.
Generally, the words of an assignment must be construed according to their ordinary meaning, unless something in the assignment indicates that they are being used in a special sense. Estate of Mierzejewski (1938), 226 Wis. 447, 277 N.W. 172. The assignment by Mrs. Tullgren was expressly made in "accordance with the terms of said contracts and particularly paragraph 11." Paragraph 11 authorized assignment of the contract on the death of Mr. Tullgren, but only on the terms contained in that paragraph. We are of the opinion that the assignment dated December 12, 1944, was absolute. If Mrs. Tullgren reserved any rights or interest in the 1931 and 1941 contracts, such rights were derived solely from her separate agreement with Mr. Herbst.
2. Notice to the School District.
Paragraph 16 of the trial court's finding reads as follows:
"I find that the school district had no actual knowledge of the existence of the 1944 contract between Mrs. Tullgren and William G. Herbst, was not a party to this contract, and did not take any action to subscribe, approve, or become bound by this contract."
There was conflicting evidence on the question whether the school district had notice of the separate agreement between Mrs. Tullgren and Mr. Herbst. Although there was testimony by an attorney that he mailed a copy of such separate agreement to the school district, the trial judge was not bound to accept such testimony as a fact. This is particularly true where such testimony is in part dependent upon the memory of an individual as to what he had done on a rather-routine matter over fifteen years earlier. The records are by no means conclusive so as to contradict the trial court's finding. In Ace Associates v. Nagy (1961), 13 Wis.2d 612, 613, 109 N.W.2d 359, we said:
"In a trial to the court the court's findings of fact may not be set aside on appeal unless contrary to the great weight and clear preponderance of the evidence. The trier of fact is the judge of the credibility of the witnesses and the weight of the testimony and the inferences to be drawn from the evidence."
Clearly the school district was not a party to the separate agreement between Mrs. Tullgren and Mr. Herbst. In the absence of a finding that the school district had notice of such separate agreement, there is no basis for charging the school district with liability under such contract.
3. The Use of the Tullgren Plans.
The trial court also entered findings that the Tullgren plans were not utilized in the construction of the high-school addition and that the plans actually used differed materially from those of Mr. Tullgren "in the basic scheme of the design and appearance."
The testimony of two architects, Mr. Johnson and Mr. Brust, demonstrated that different plans were used. The latter architect testified as follows:
"My opinion is that the building as constructed was completely different than that which was planned. My reasons are that the form and function of the new building do not compare with the form and function of the originally planned building. I would say the traffic flow and the relationship of this building with the adjoining buildings was completely different."
It is noted that even Mr. Kramer, the architect who testified on behalf of Mrs. Tullgren, acknowledged that there was a large difference in area between the two sets of plans. The findings of the trial court relative to the use of the plans may not be disturbed on this appeal.
4. The School District's Appeal.
The school district has appealed from the order which denied its motion to dismiss the action against it on the grounds that the settlement on the part of Mrs. Tullgren with Herbst wholly disposed of the plaintiff's claims. In view of our conclusion that the judgment in favor of the school district dismissing the complaint on the merits must be affirmed, it becomes unnecessary to review the appeal of the order denying the motion to dismiss. The issue has become moot and for that reason the school-district's appeal will be dismissed. See Wisconsin E. R. Board v. Allis-Chalmers Workers' Union (1948), 252 Wis. 436, 32 N.W.2d 190, and Lamoreux v. Williams (1905), 125 Wis. 543, 104 N.W. 813.
By the Court. — Judgment affirmed; appeal from order dismissed.