Hasbrouck v. City of Milwaukee

Cole, J. 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 — 235 — common council or confirming any contract. The first act authorized the mayor and common council to increase the amount of bonds they had been theretofore empowered to issue for the purpose of constructing the habor, to one hundred thousand dollars ; while the other act empowered them to issue such an amount of bonds as might be necessary to complete the improvement. But, as already observed, these acts were passed after the modification of the original contract, and it is reasonable to assume that the legislature intended they should apply to the contract as modified, and enable the common council to carry it out on the part of the city. This, we think, is fairly inferrible from the necessity and object of these acts. Hence, when the case was first here, the chief justice in effect said, that if it had appeared that the city, by some authorized action, had procured the passage of the act of 1857, or had subsequently acquiesced in it. by ratifying the contract, there would be little difficulty in the way of holding that the city was bound by the terms of such contract. If this view of the case be correct, then it is very evident that the reasoning advanced and authorities cited to show that the contract for completing the harbor on the government plan was void because the work was not let to the lowest bidder, or because the substituted plan required a larger expenditure than the common council was at first authorized to make, or for any other reason, are wholly inapplicable. For if the common council, in making the contract for the construction of the harbor on the government plan, exceeded their authority in any particular, the legislature has seen fit to confirm their action. It has given validity to what was before irregular and void. That this was the intention of the legislature in passing those laws — that the legislation was designed to apply to past transactions and to the existing contract — we have no doubt. This is all we deem it necessary to say in reply to the very full and able argument of counsel upon this point. — 236 — Another objection relied upon is, that the plaintiff was bound to state in his complaint, and show by proof, what amount of work was done and what materials were furnished under the original contract, as well as what was the value of the extra work and materials, so that the jury could readily determine the value of the extra work as contradistinguished from that included in the original contract and covered by the contract price. The complaint alleges that the change in the plan was a material and substantial change, which greatly enhanced the cost and expense of constructing the harbor; so much so that the original plan could not be followed as a guide even to the extent of the amount -of work, labor and materials contemplated and estimated as sufficient for the completion of the harbor on such original plan. Mr. Hadley, chairman of the harbor committee, states in his testimony, that the reason why the city engineer was directed to make his estimates on a cash basis after the adoption of the government plan was, because the change was so great that the old plan could not be followed in making the estimates. All the evidence shows most conclusively, that the change from the city plan to the government plan was quite radical. No attempt was made by the city engineer to distinguish in his estimates what, if anything, should be referred to the old contract, and what was extra work proper. And yet the city engineer, in making Ms estimates, acted under the special instructions of the harbor committee; and the common council were fully apprised of the method he was pursuing. But asno objection was ever taken to this mode of making the estimates, the remark of the counsel for the respondent seems to be fully warranted by all the evidence, that the idea of attempting to estimate the extra expense occasioned by the change was totally abandoned when the change in plan took place. After the change of plan, there would not seem to be any inherent difficulty in making estimates under the old contract for some of the work done by — 237 — the plaintiff under the government plan, as for instance, the amount of dredging between the piers required by both plans, the value per cord of stone, &c. Still it was perfectly competent for the parties to abandon the old contract altogether, even as a basis for making estimates for these things. And after having done this, at least after directing"the city engineer to disregard the old contract in making estimates, it does not lie in the mouth of the defendant to object that the plaintiff must show what work and materials were embraced in the original contract, and what was extra work, in order to recover. 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 — 238 — demanding of certain members of the harbor committee in 1856 and 1857, during the progress of the work and while payments in bonds were being made, that such bonds were to be received and accounted for by the plaintiff at their market or cash value, and not at par, this would not establish a valid agreement on the part of the city for such a change in the mode of payment. This instruction, together with the second and third instructions given on behalf of the plaintiff, contains, we think, a correct exposition of the law bearing upon this branch of the case. 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. — 239 — By the Court.- — Judgment affirmed. Downer, J., baying been of counsel, did not sit in this case.