21 Wis. 217 | Wis. | 1866
After what has been said in this case on former appeals, as reported in 13 Wis., 38, and 17 id., 266, we do not deem it necessary to notice in detail the numerous exceptions which appear upon the record. For many of these exceptions relate to points which were previously discussed; and if not expressly, they have been at least impliedly overruled in the opinions already delivered. An able argument has been presented by the counsel for the city, for the purpose of showing that the contract for constructing the harbor according to the government plan must be held void, because the work and materials were not proposed for, or let to the lowest bidder, after public notice, as required by the act of April 1, 1863, and the general provision of the city charter bearing upon the subject; and likewise to show that the contract is invalid upon other grounds. Substantially the same objection has been heretofore taken to the contract. But it has always appeared to us that a conclusive answer to this argument is derived from the acts of the legislature, approved March 18,1856, and February 23,1857. These acts were passed after the modification of the Hawley contract by adopting the government plan, and in view of the greatly increased expense occasioned by the adoption of this plan; and must be construed, as we think, in the nature of a legislative ratification of the proceedings of the common council in changing the plan and making the contract in the manner it was made. It is true, there is nothing said in either of these acts about ratifying any proceedings of the
A further objection is, that the plaintiff could not recover for the expense of constructing the protection work so called. That work was built under the direction of the city engineer and harbor committee, and seems to have been necessary to the economical building of the harbor. Indeed, the city engineer so states in his testimony. It is said that the city engineer and harbor committee had no power to direct or make the city liable for any such work. We think otherwise. It appears to us that it was strictly within the scope of the authority of the harbor committee and city engineer, to oversee and direct as to the best manner of executing the contract; and every principle of equity and justice requires that the city should pay what the protection work was reasonably worth.
The question whether, after the change of plan, the work proceeded upon a cash basis and upon the understanding that the plaintiff was to receive the city bonds at their cash value only, was properly left to the jury. This was a question of fact; and it is certainly impossible to say upon this record that there is not testimony which tends strongly to show that the contract had been changed in this particular by the parties before its execution. It is unnecessary to recapitulate the evidence bearing upon this point. In the twenty-sixth special instruction asked by the defendant and given, the jury were told that even if they should find from the evidence that it was the un
Again, it is insisted that the circuit court erred in refusing to reduce his charge to the jury to writing, as required by defendant’s counsel, and also in addressing the jury orally while charging them in reference to the case and the trial thereof, and particularly in reference to the manner in which the trial bad been conducted. As we understand the record, the charge of the court, that is, everything which the court said to the jury to guide them in their examination of the evidence, and which related to any questions of law involved in the case, was reduced to writing before it was given. We do not suppose that remarks of the character of those added orally by the judge, which really have nothing to do with the case — no bearing upon any question of law or fact involved — can be said to be a part of the “ charge to the jury,” within the meaning of our statute. It is very clear to our minds that what the court may say in regard to the principles of law applicable to the case on trial and the evidence adduced, must be in writing, if requested, because it constitutes the “ charge to the jury.” But we do not think the remarks made by the judge in this case, as set forth in the bill of exceptions, constitute any part of his charge to the jury. Patterson vs. Ball, 19 Wis., 213.
These remarks are sufficient to indicate our views upon tbe questions involved in tbis case. We see no error in tbe record which would authorize a reversal of tbe judgment.