3 N.W.2d 701 | Wis. | 1942
Action by Standard Oil Company of Indiana against the city of Clintonville, commenced March 3, 1941, for the recovery of the purchase price of road oil and asphalt sold and delivered by the plaintiff-appellant to the defendant-respondent on various dates on and between July 27 and September 21, 1939.
The case was tried to the court without a jury. All material facts were stipulated, said stipulation being incorporated *412
in the findings of fact made by the court. The issue is whether the purchase of the material involved in the action is subject to the requirement of sec.
"All public work, the estimated cost of which shall exceed five hundred dollars, shall be let by contract to the lowest responsible bidder . . . ."
The trial court held that the materials furnished by the plaintiff to the defendant constitute and are included under the term "public work" within the provisions of sec.
"(1) That the city engage Oconto county to seal-top our black-topped streets and repair all portions of the streets in need of the same in accordance with the prices quoted in their letter dated May 26th, 1939, addressed to A.A. Washburn, Mayor.
"(2) That Oconto county be engaged by the city of Clintonville to do the black-topping for the year 1939 as per prices set forth in their letter of May 26th, 1939, to the mayor."
On June 20, 1939, respondent city, by a unanimous vote of all members of the city council, adopted the following resolution: *413
"That the city purchase the Standard road oil No. 7 in tank car lots at
On and between July 27 and September 21, 1939, appellant sold upon open account and delivered to the respondent city twenty-three carloads of road oil at the agreed price of
The liability of the city for payment of the material depends entirely upon whether sec.
"All public work, the estimated cost of which shall exceed five hundred dollars, shall be let by contract to the lowest responsible bidder; all other public work shall be let as the council may direct. The council may also by a vote of three fourths of all the members-elect provide by ordinance that any class of public work or any part thereof may be done directly by the city without submitting the same for bids." *414
Sec.
"When the work is required or directed to be let to the lowest responsible bidder, the board of public works shall prepare plans and specifications for the same, containing a description of the work, the materials to be used and such other matters as will give an intelligent idea of the work required and file the same with the city clerk for the inspection of bidders, and shall also prepare a form of contract and bond with sureties required, and furnish a copy of the same to all persons desiring to bid on the work."
Sec.
The term "public work," as used in sec.
"Appellant's case depends primarily upon whether the word `work' in sec. 13, subch. IV, of the respondent city's charter (ch. 252, Laws of 1887), is limited to the mere exercise of human energy, with or without the use of appliances to render the same efficient, instead of extending to the products of *415 such energy, such as a bridge, a building, or any one of a great many things that might be mentioned, not mere matters ofmerchandise."
At page 93 the court said:
"One of the most familiar rules for judicial construction would require the word `work' as thus used to include the products of work other than mere merchandise."
The charter of the city of Durand provided:
"Sec. 13. All contracts for work ordered by the common council of said city, the expense whereof shall exceed the sum of $50, shall be let to the lowest reasonable and responsible bidder who shall have complied with the requirements hereinafter set forth. All bids and proposals shall be sealed and directed to the common council, and shall be accompanied with a bond to the city in a penal sum equal to the amount of the bid, which bond shall be signed by the bidder and by a responsible surety, who shall justify that he is worth the sum mentioned in such bond over and above all debts, liabilities and exemptions; such bonds shall be conditioned that such bidder will execute a contract at such time as the common council shall require, with satisfactory sureties, to perform the work specified; and in case of failure said bond may be prosecuted in the name of the city, and judgment recovered thereon for the full amount of the penalty thereof, as liquidated damages, in any court having the jurisdiction of the action."
This language is quite similar to that used in some of the subsections of sec.
It is important to note that as to villages, sec.
"All contracts for the performance of any work or thepurchase of any materials, in any such village, exceeding five hundred dollars, shall be let by the village board to the lowest bidder in such manner as they may prescribe."
Prior to the amendment of 1907, the provision as to villages read: *416
"All contracts for the performance of any work in any such village, exceeding fifty dollars, shall be let . . . to the lowest bidder."
By ch. 245, Laws of 1907, the legislature amended the statute by inserting the words "or the purchase of any materials." With this subject matter before it for consideration in 1907, the fact that the legislature made no change in the provisions of sec.
The parties stipulated and the court found that no contract existed for the furnishing of any specified amount of oil. The resolution of June 20, 1939, fixed the price per gallon, f.o.b. Clintonville. No formal contract was entered into. The plaintiff agreed to protect the city on he price of oil for its needs during the season of 1939. The city purchased upon open account as its need required. It was at liberty to cease purchasing from the plaintiff at any time and could have purchased from other companies if it so desired.
The respondent contends that the case is ruled in its favor by Bechthold v. Wauwatosa,
The defense that there was no certification by the comptroller that there were sufficient funds in the treasury to meet the expense of the black-topping project, or any certification that provision had been made to pay for such project, under sec.
By the Court. — Judgment reversed. Cause remanded with directions to enter judgment in favor of the plaintiff against the defendant for the sum of $7,991.32, with interest, since November 15, 1940.