Burnham v. City of Milwaukee

Cassodav, J. The complaint is not objectionable for omitting to embody the plans and specifications referred to in the contract. They are presumably in the possession of the defendant; if not, they are easily obtainable in the method prescribed by law. There is no reason for making the complaint more definite and certain by stating the several names of the members of the board at the different dates mentioned, as they were necessarily known, or readily ascertainable by the city authorities. The alleged consent of the board to the assignment of the contract by Rice to Burnham is the allegation of a fact, and seems to be sufficiently definite and certain for practical purposes. No new contract is alleged, but merely the substitution of Burnham in the place of Rice to perform the old one, brought about by the action and non-action of the defendant. It is alleged, with sufficient certainty and definiteness, that all parties agreed to such substitution and assignment. It is claimed that the complaint should be made more definite and certain by showing what changes and extra work were made necessary after the assignment, and when and by whom the several changes were made, and what extra work and materials were made necessary thereby. The members of the board were necessarily the agencies of the board which had the control of the job. An allegation as to the act of the principal includes the act of the agent. The several actions of the board being alleged, the defendant is presumed to know the several agencies by which it acted. The respective bills of particulars, with the several items therein 385 under different dates, seem to supply any want of definiteness and certainty in the complaint itself as to the extra work and materials. All the work was done, and all the materials furnished, under the one entire contract made with Eice, and by him assigned to the plaintiff. The breach alleged is the failure to adjust, settle, or certify the amount due thereon, and to pay the same, after the contract was fully performed. Eice only partially performed the contract. The plaintiff took it up where he left it, and carried it forward to completion. The work done and materials furnished by the one alone, did not constitute a complete cause of action; it was the work done and materials furnished by both which gave the right to recover. There is no good reason for separating things which are thus inseparable. The contractor, having submitted himself to the arbitrament of the board, would be concluded by its determination, in the absence of fraud or bad faith. Wright v. Forrestal, 65 Wis. 341. Hence the necessity of alleging the facts constituting bad faith and unworthy motives upon the part of the board and its members. Such are the allegations sought to be stricken out. In motions like this, the trial court necessarily has a broad discretion. The exercise of such discretion will not be disturbed by this court upon mere technical grounds, and where no substantial rights are affected, and the matter sought to be stricken out is not unnecessarily scandalous. Brachman v. Kuehnmuench, 64 Wis. 249. To do so would be to encourage what ought to be discouraged. By the Court.— The order of the county court is affirmed.