167 Wis. 371 | Wis. | 1918
The question is whether the counterclaim states a cause of action in favor of the city against the defendant contractor. It is alleged that the initial proposal for the construction of the plant made by the defendant to the city, which was subsequently accepted and formed the basis of the contract between the parties, contained this provision: “The contractor must enter into a bond for fifty per cent, of the contract price to guarantee the faithful performance of the contract and the payment of all labor and materials.” This provision was, by appropriate reference, made a specific part of the contract. It is also alleged that the contract provided that the contractor was to be paid “eighty-five per cent, of the proportionate value of the work done monthly as the work progressed, on the estimate of the city engineer of said defendant, and the remaining fifteen per cent., together with any other sums due on the contract, if any, on the full completion of the entire work, as soon as the city engineer and board of water commissioners of said defendant were satisfied that the work was completed, and that all claims and demands
In their brief the attorneys for the appellant contractor assume that that part of the contract providing that the 'contractor shall be paid “eighty-five per cent, of the proportionate value of the work done monthly as the work progressed, on the estimate of the city engineer of said defendant, and the remaining fifteen per cent., together with any other sums due on the contract, if any, on the full completion of the entire work, as soon as the city engineer and the board of water commissioners of said defendant were satisfied that the work was completed, and that all claims and demands against the plaintiff herein by any subcontractor for work performed or material furnished in the erection and construction of said filtration plant were paid,” is of controlling significance, and cite cases from other jurisdictions involving the meaning of the term .“subcontractor,” as used in the various statutes dealing with the subject of mechanics’ liens, and easily reach the conclusion that those who furnished material and labor for the subcontractor, Sterling Engineering & Construction Company, are not within the protection of the contract and bond.
The various provisions of the proposal, contract, and bond above quoted must all be construed together, and effect given to the intent of the parties as disclosed by these various ex
Gathering tbe intention of tbe parties, as we must, from each and every expression bearing upon tbe subject found in tbe various written instruments relating to and constituting tbe contract between them, there seems to be no reasonable doubt that every person who in any manner rendered and performed labor and services, or furnished materials of any kind, nature, or description in and about tbe construction of said filtration plant, was within tbe protection of tbe contract and bond, and that tbe term “subcontractor,” as used in tbe provision of tbe contract referred to, cannot restrain other expressions often repeated, comprehending a larger class, to the narrow and technical meaning ascribed to tbe term as used in particular statutes. It is rather our view that- tbe term “subcontractor,” as used in tbe contract, should be construed in tbe light of other expressions used elsewhere in tbe contract as well as in tbe proposal and bond, of similar though broader significance, and in harmony with such expressions. As so construed, it includes all persons who have acquired
Attorneys for appellant also contend that stipulations in a contract such as this, requiring the contractor to pay for all labor and material, are .deemed to have been made by the city for its own protection and not for the benefit of third persons, and cite authorities from other jurisdictions, all of which are out of harmony with the decisions of this court upon that subject. If it was not settled before, the decision of this court in Builders L. & S. Co. v. Chicago B. & S. Co., ante, p. 167, 166 N. W. 320, leaves no doubt concerning its attitude upon this question, and no more need be said upon the subject.
It follows that all furnishing labor or materials, entering into the construction of the plant, for the subcontractor, Sterling Engineering & Construction Company, whose claims are unpaid, not only have a valid claim against the plaintiff under the settled law of this state relating to contracts made by one for the benefit of another (Builders L. & S. Co. v. Chicago B. & S. Co., supra; Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440; U. S. G. Co. v. Gleason, 135 Wis. 539, 544, 116 N. W. 238; R. Connor Co. v. Ætna Ind. Co. 136 Wis. 13, 18, 115 N. W. 811; Warren Webster & Co. v. Beaumont H. Co. 151 Wis. 1, 10, 138 N. W. 102; Concrete S. Co. v. Ill. S. Co. 163 Wis. 41, 44, 157 N. W. 543), but that the city, as a defense to the present action, may counterclaim ■against the plaintiff for the amount of such unpaid bills, whether they amount to more or less than the amount remaining unpaid of the contract price of the filtration plant.
The liability of the contractor and the surety upon the bond is not limited to the amount that remains unpaid on the contract price. The obligation of both calls for the full payment of all such claims. The provision in the contract that final payment shall not be made until all such claims are paid is
As a part of its prayer for relief tbe city asks that tbe various claimants of whom it has knowledge, as well as tbe surety on tbe bond, be made parties to tbe action. Tbe appropriateness of tbis in a prayer for relief may well be doubted. Tbe bringing in of new parties comes in tbe course of tbe proceedings and is not a matter to be dealt with in a final judgment. That, however, does not make tbe counterclaim demurrable, and perhaps mention of tbe matter is unnecessary. But because it appears that tbe city attorney has in mind tbe bringing in of all parties interested, to tbe end that all conflicting interests may be determined in tbis action, a proposition much favored by tbis court, it seems appropriate to suggest that seasonable application for an order in that behalf should be made. If tbe proper application be made, such an order will no doubt be granted. Tbe amount of tbe various claims can then be judicially determined under circumstances according to every one interested tbe right to be beard. All conflicting interests can be considered and determined, and effect will be given to tbe pro
We tbink not only that tbe order overruling tbe demurrer was right, but we approve tbe obvious , purpose of tbe city attorney to make all interested parties to tbe action, so that tbe various conflicting interests can be determined therein and tbe rights and liabilities of all established by a single judgment.
By the Court. — Tbe order appealed from is affirmed.