Thomsen v. City of Kenosha, 165 Wis. 204

Thomsen v. City of Kenosha

165 Wis. 204 | Wis. | 1917

Siebecker, J.

It appears without dispute that the sewer could not be constructed on the route specified in the original plans and profile, upon which plaintiff made his bid to construct the sewer; that plaintiff was informed of this fact after he had submitted his bid and before the city had entered *206into a contract for the construction of the sewer with him and that the common council had changed the route of the sewer to the one on which it was built. The plaintiff accepted this change of route and entered into the contract for its construction pursuant to the plans and profile furnished him of the new route. . The evidence shows that plaintiff entered upon the work of constructing this sewer about September 17, 1913. The contract provides that the sewer was to be completed on or before January 1, 1914, but the work of construction was not in fact finished until the month of May, 1914. The referee found that plaintiff received payment of the full contract price. This is abundantly supported by the evidence.

It is argued that the plaintiff’s claim for constructing two catch-basins, for excavating 1,000 cubic yards of earth, and hauling and scraping earth were all items in excess of what was required under the plans and profile on the original route, and that the extra cost of these items and the cost for .extra liability insurance constitute additional work and cost ;not contemplated by the contract. It is obvious from the facts presented that all of these items were a part of the work ■ of construction included in the contract and under the evidence they are extra work within the stipulations of the ¡contract-. The evidence sustains- the referee’s finding, that there was no extra excavating. The contract included all the work of excavation included in the construction of the sewer on the new route. The court and referee also properly held that the plaintiff is not entitled to recover for the extra “breaking frost” and “two catch-basins” upon the ground that it was not ordered by the city nor was the price of the extras agreed upon in writing and signed by the plaintiff and ¡th,e street committee before the extras were furnished as required by the contract for the construction of the sewer; nor -was the claim therefor presented in writing to the city with*207in fourteen days from tlie time the alleged items of expense-were in fact incurred.

The circuit court properly held that the referee’s findings are not contrary to the clear preponderance of the evidence, that they should he affirmed, and that defendant is entitled to judgment dismissing plaintiff’s complaint.

By the Court. — The judgment appealed from is affirmed-