Hanrahan v. City of Janesville

145 Wis. 457 | Wis. | 1911

ViNJE, J".

Tbe first question raised by tbe defendant is that'there was no assignment of tbe contracts from Benson, tbe principal contractor, to tbe plaintiffs, that was binding upon tbe defendant, owing to tbe fact that it never knew of, or consented to, such assignment. Tbe trial court, however, found that it did, and we are strongly urged to set aside such finding as not supported by tbe evidence. We deem it unnecessary to determine tbe precise question raised, because tbe city is not seeking, by counterclaim or otherwise, to enforce any liability against tbe principal contractor or the plaintiffs, but only attempting, by defensive matter, to escape tbe liability sought to be enforced against it. All tbe work required to be done under tbe contracts was done by tbe plaintiffs with tbe knowledge and consent of tbe defendant. For it is admitted that Benson sublet tbe work to tbe plaintiffs; tbat tbe defendant consented in writing thereto; and tbat all tbe work called for by tbe contracts bas been fully performed. Tbat being so, it is not perceived bow tbe defendant is prejudiced by an assignment to tbe plaintiffs of whatever claim there may be under tbe contracts by tbe rightful owner of such claim. Confessedly such owner was either Benson or tbe plaintiffs. Benson having assigned to tbe plaintiffs, tbe defendant is amply protected by such assignment from further suits by him. Hankwitz v. Barrett, 143 Wis. 639, 128 N. W. 430. And defendant was in position to interpose any defense against tbe plaintiffs tbat would have availed against Benson. So we must conclude tbat tbe assignment was valid and tbat plaintiffs were entitled to maintain tbe action.

Tbe more important question is whether or not plaintiffs necessarily did more work than their contracts called for. Tbe solution of this question will depend upon whether or not tbe plaintiffs were entitled to rely upon a so-called “bidding sheet” or estimate of cuts, hereinafter mentioned. Tbe incorrectness of this sheet was admitted. It appears tbat tbe defendant city, as to sewers, is operating under tbe general charter law found in secs. 925 — 208 to 925- — 239c, Stats. Such law provides in secs. 925 — 208 to 925 — 212 tbat tbe city shall be divided into sewerage districts and a plan shall be adopted; tbat diagrams of tbe plans of tbe sewerage for each district shall be prepared, showing tbe lots and parcels of land, tbe main sewers, minor sewers, manholes, catch-basins, and all other matters pertaining to tbe system. It further provides for notice to be published of tbe proposed plan, of a bearing of objections, and a report thereon to tbe common council. Tbe latter “shall then examine tbe same and may approve tbe plan as proposed or change it in such manner as they think proper, and approve as changed or modified by tbem, or may reject tbe plan and direct tbe board to propose a new plan, in wbicb case proceedings shall be bad as before.” Sec. 925 — 211. Tbe nest section provides that “when tbe plan for any sewerage district is finally ■determined complete diagrams of tbe same shall be prepared in duplicate and certified to be correct by tbe board of public works; one of such diagrams shall be filed in tbe office of tbe ■city clerk and one in tbe office of tbe register of deeds of tbe county within which the city is located.” It is also made •obligatory on tbe board of public works to present to tbe council on nr before tbe first Monday of March in each year a report “of tbe sewers necessary or advisable to' be constructed during tbe ensuing year.” This report tbe council may approve as made or as changed or modified by it. ■Sec. 925 — 213. Tbe provisions of sec. 925 — 214 are that:

“After tbe council shall have ordered tbe construction of any sewer tbe board of public works shall advertise for and receive bids to do tbe work so ordered, having first procured to be carefully prepared and put on file in tbe office of tbe board, for the examination and guidance of bidders, plans and specifications describing tbe work to be done and tbe kinds and qualities of materials to be used, as directed by tbe council, and shall let tbe contract to tbe lowest responsible and reliable bidder; provided, however, that tbe board shall have tbe right to reject all bids and re-advertise for proposals if they believe none of tbe bidders are responsible or that any agreement has been entered into between bidders to prevent competition; and provided further, that tbe contract shall not be binding till approved by tbe council and countersigned by tbe comptroller.”

It is apparent from this scheme that every step in tbe progress of tbe construction of sewers, from tbe first proposed plan until tbe approyal of tbe contract by tbe city comptroller, is a matter of record, and is a matter upon wbicb tbe city as ■such acts. Sec. 925 — 214 prescribes precisely what tbe board of public works shall cause to be prepared and put on file for tbe examination and guidance of bidders, namely, plans and specifications describing tlie work to be done and tbe kinds and qualities of material to be used, as directed by the council. The rule Expressio unius est exclusio alterius certainly applies here. In express terms the statute says, what bidders shall examine and be guided by, namely, the plans, specifications, etc., prepared by the city pursuant to-law and put on file for that express purpose. ETo mention or hint of any bidding sheet or estimate of cuts prepared by the city engineer or any one else is made. Indeed, the very contract entered into between the parties excludes the idea of any such sheet having been the basis thereof or even the-inducement therefor. It says:

“Whereas, The said party of the first part hath made to-the city of Janesville a proposal in writing, which is hereto-annexed, marked ‘Exhibit A,’ to furnish all the material and do all the work for the construction and completion of certain sewers mentioned in said proposal, according to the specifications therefor, hereto annexed, marked ‘Exhibit B,’ and the profiles, plans and details thereof on file in the office of the street assessment committee, in the city clerk’s office in said city; and tfie contract for doing said work has been awarded to the said party of the first part in the manner provided bylaw:

“How, therefore, the said party of the first part, hereinafter-designated ‘the contractor,’ for and in consideration of the covenants and agreements hereinafter contained, hereby covenants and agrees to and with the city of Janesville to furnish all the material and do all the work necessary and required for the construction and completion of -the sewers in the streets, parts of streets, alleys, public grounds and lots mentioned in said proposal, and to prosecute the same diligently to their full completion, in accordance with and pursuant to» the specifications therefor, and the profiles, plans and details thereof, and subject to the superintendence and direction of' the street assessment committee, as in said specifications and this contract set forth. And said proposal, specifications,, profiles and plans respectively, are hereby made a part of this-contract, and mutually binding and obligatory in all respects to the same purpose and effect as if incorporated in this contract; and all the requirements thereof respectively are agreed upon as of the terms of this contract, .and as well of the character and quality of the material to he used and the manner of the construction of the said sewers therein specified and set forth, and the price to be paid for the construction and completion of said sewers.”

This sets forth clearly that the plaintiffs agreed to furnish the material and do the work in accordance with and pursuant to the specifications, profiles, plans, and details on file in the city clerk’s office, which were by the terms of the contract incorporated therein and made a part thereof. .When we come, therefore, to inquire what the plaintiffs agreed to do, we find it clearly set out in the contract itself. They agreed to do the work, not as per bidding sheet, but as per plans and specifications incorporated into the contract. The bidding sheet was a mere fugitive piece of paper entitled “Sewer Estimate of Outs in Janesville, Wis.” It was found by the trial court to have been given by the city engineer to the contractor, Benson, when he came to figure on the contract. The city engineer stoutly denied that he gave it to Benson and says it was prepared by his assistant at the request of certain other contractors, and that in the preparation of it his assistant did the work for the contractors and not for the city. Benson said, speaking of the bidding sheet: “I got the blue prints to figure on, at the same time he [the city engineer] gave me this to expedite and help me in the matter.” We will assume, however, that the fact is as found by the trial court, that it was given to Benson by the city engineer. Did the contractor have a right to rely upon it ? The sheet consists of a computation as to each street showing minimum, cut; maximum cut; average cut; distance of average cut; distance of cut over eight feet; and sizes of pipes. It is evident, therefore, that it is neither a plan, profile, specification, nor a detail, but a computation made from the profiles and specifications. It was not contemplated, called for, or- mentioned either in the statute or the contract. In dealing with a public corporation as the contractor did, he was bound to know tbe extent of tke authority of its officers as well as of the corporation itself. “It is a general and fundamental principle of law,” says Dillon in Ms work on Municipal Corporations, sec. 447 (4th ed.), “that1 all persons contracting with a municipal corporation must at their peril inquire into the power of the corporation or of its officers to make the contract ; and a contract beyond the scope of the corporate power is void, although it be under the seal of the corporation. . . . So, also, those dealing with the agent of a municipal corporation are likewise bound to ascertain the nature and extent of his authority. This is certainly so in all cases where this authority is special and of record, or conferred by statute. The fact that in such a case the agent made false representations in relation to his authority and what he had already done, will not aid those who trusted to such representations, to establish a liability on the part of his corporate principal.” He was therefore chargeable with, knowledge of the fact that the city engineer had no authority to change the depth of the excavations as shown by the profiles. The statute prescribed the mode of letting the contract and the basis upon which it was to be let, and that mode was exclusive and binding upon both the city and the contractor. He cannot now be heard to say that he relied upon something which he knew he had no right to rely upon. Eor every person dealing with an officer of a public corporation is presumed to know the extent of his powers in the particular case. Gilbert v. Pier, 102 Wis. 334, 78 N. W. 566.

Hut it is claimed that laymen and contractors could not determine the depth of cut from the profiles and therefore recourse to the bidding sheet was necessary. It is rather regretfully that we mention this claim, for it can hardly be disposed of without the use of language that may offend. The profiles were carefully drawn to scale with the horizontal and vertical scale plainly marked thereon, and showed the existing surface of the street in each case, and the base or bottom line of the sewer as to each street, yet in spite of this fact several witnesses testified that the contractors -conld not compute the amount of excavation therefrom. Such testimony challenges either the credibility or the intelligence of the witness, or both. The witness Lindquist emphasized this challenge by first testifying that it was not practicable to figure from the profiles, and then by saying that as the work progressed he frequently scaled the profiles to check up and to ascertain how deep their work was; and that he used the profiles in the progress of the work. Benson had been in the sewer contracting business for ten years and Lindquist for fifteen years. They were neither laymen nor tyros. It would seem as though it were high time they understood profiles. So much by way of a gentle reminder to witnesses that courts are not bound to accept as true all testimony that is given.

We have stated that the profiles showed the existing surface of the street in each case. This is true, though such fact did not appear from those profiles on which only the established grade of the street was marked. The established grade of each street, however, was a matter of public record, and the survey made by plaintiffs’ witness Clausen, which was a surface survey of every street in question, shows that the established grades corresponded to the actual surface or else there would not have been a practical correspondence between Mr. Clausen’s survey and the profiles. That there was such a correspondence is shown by Mr. Clausen’s testimony and is not disputed. The contractors, by the profiles, plans, specifications, and details, were furnished correct data upon which to base their bid. That a correct so-called estimate of cuts or bidding sheet would have saved them considerable work in computation is self-evident. But the statute has seen fit to place the burden of computation upon the contractors and not upon the city, and there we must let it rest.

As no claim is made that more work was done or material furnished than was called for by the profiles, plans, specifications, and details, and as these were all admitted upon the trial to be correct, it follows that plaintiffs’ claim should have been disallowed in full. This disposition of the case renders it unnecessary to consider a number of questions* discussed in the brief and upon the oral argument.

By the Oourt. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.