180 Wis. 278 | Wis. | 1923
Plaintiff brought this action as a taxpayer to enjoin the payment of the final estimate on the ground that the contractor was being allowed compensation for some 47,000 tons of stone, amounting to $97,995, in excess of
With reference to a change in the plans and specifications the contract provided that “all such alterations or changes may be ordered in writing by the superintendent of bridges and public buildings, otherwise they will not be acknowledged and the contractor will be held to the original plans and specifications.” It is conceded that, so far as the controversy here involved is concerned, no alterations or changes in the original plans were ordered by the superintendent of bridges and public buildings in writing. It also may be conceded that the amount of material for which the contractor was allowed compensation exceeded the theoretical, mathematical contents of the original plans and specifications, and the question which we are required to consider is whether a taxpayer may restrain the payment for such excess material.
Sec. 20, ch. V, of the’ city charter confers upon the commissioner of public works power “to adjust and determine all questions as to the amount. earned under any contract by the contractor or contractors according to the true intent and meaning of the contract; and such adjustment and determination by said commissioner shall be final between the parties and binding upon them.” This provision of the
That a controversy existed between the contractor and the city with reference to the amount of material that was going into the breakwater plainly appears from the statement of facts. This controversy was waged for many months, and in one way or another was brought to the attention of about every department of city government in an}' wise connected with that or similar enterprises on the part of the city. In meeting the claims and demands of the contractor the city requisitioned the advice, service, and experience of the city engineer, 'the superintendent of bridges and public buildings, the commissioner of public works, the harbor commission, the city council, the mayor, and the city attorney. There is not the least suggestion of a purpose on the paid of any official to betray the interests of the city and to unduly favor the contractor, and in view of the open and notorious manner in which the matter was handled it would indeed be difficult for any one official to accomplish any such result. At the suggestion of the mayor, the head of the city government, the common council referred the matter to the harbor commission for investigation and report, no doubt upon the theory that that was the most appropriate and responsible body to ascertain the facts and
The trial court not only refused to find that the action of the commissioner of public works was characterized by fraud, ignorance, or mistake, but made an affirmative finding that the breakwater was built in substantial compliance with the original plans and specifications. That finding is assailed as unsupported by the evidence. But we think the finding is well supported by the evidence, and this in face of the concession that the material paid for exceeded the theoretical, mathematical contents included within the original plans and specifications. It must not be forgotten that the bottom of the lake proved to be a shallow crust which gave way under the weight of the breakwater, causing the same to sink into several feet of mud. This in and of itself increased the perpendicular lines of the breakwater. It also made necessary a broader base with a corresponding change of slope. It further appears that no such a structure can be built on line and that it is customary to* allow one foot leeway in the placing of stone under water.
But even though we were obliged to hold that the finding of the trial court that there was a substantial compliance with the original plans and specifications is not supported by the evidence, the result contended for by plaintiff would not necessarily follow. While it is true that the plans and specifications in the particulars under discussion were not changed by written order, the conduct of the city certainly constituted an acquiescence in the established lines of the structure and constituted a waiver of the provisions of the contract requiring changes in the plans and specifications to be by written order. There is no provision of law requiring contracts of this nature to provide for a change of plans and specifications by written order. In this contract that provision was inserted for the benefit of the city. It was a provision which might be waived by the city. First Sav. & T. Co. v. Milwaukee Co. 158 Wis. 207, 232, 148 N. W. 22, 1093. The city having the power to waive the requirement, its acquiescence in and acceptance of the structure, as the result of several months’ discussion, conference, and negotiation, clearly indicated its intention to do so.
Neither is appellant’s contention that the city is paying for something which it did not receive, tenable. There is quite convincing evidence in support of the finding of the court that the original plans and specifications provided for
We can discover no error justifying a reversal, and the judgment must be affirmed.
By the Court. — Judgment affirmed.