Market v. City of Milwaukee

Taylob, J. The learned counsel for the city claims that the demurrer should have been sustained, first, because it is not alleged in the complaint that the work was done to the satisfaction of the board of public works. There would be great force in this objection to the complaint had the action been an action to recover for work done under [352] the contract. But it is evident that the action is not to recover for work done under the contract. The action is clearly an action for the recovery of damages for a breach of the contract on the part of the city, in not permitting the plaintiff to perform a part of his contract, and he claims as damages the profits he might have made on that part of the contract, had he been permitted to perform it. The second ground of demurrer is that the complaint fails to allege that the board of public works had adjudicated upon the plaintiff’s, claim. After a careful examination of the contract we are unable to find any agreement on the part of the plaintiff that the damages which he may suffer from the acts of the.city or its officers in refusing to permit him to go on with his contract, or any part thereof, must be first adjudicated by the board-of public works before he can maintain an action to recover such damages. The adjudications provided for in the contract relate to the amounts which may have been earned under the contract, and to the damages which may accrue to the city for a failure to perform the contract on the part of the plaintiff according to the terms of his contract. It is true there is a provision in the contract that the board of public works may, under certain circumstances, suspend the work of the plaintiff under the contract, and relet the work to other parties. There is nothing in the complaint which tends to show that the board of public works had suspended the plaintiff’s work under the contract by virtue of this provision in the contract. If the board refused to permit the plaintiff to perform that part of his work which is set up in the complaint as the basis of his action under this provision in the contract, that fact might be a defense to the action; but such defense must be raised by an answer, and is not raised by a demurrer to the complaint. The allegation of the complaint is “ that the city, by its duly constituted officers, caused the plans and specifications [353] for doing said work to be modified and changed, whereby the lateral sewers contracted to be constructed by the plaintiff were shortened, to the extent of 176 feet, against the will and protest of the plaintiff.” We find no provision in the contract which authorizes the city arbitrarily to modify or change the contract made with the plaintiff, and, if the city has modified or changed the contract for any cause which authorized it to do so, such fact might be set up as a defense to the action; but, under the allegations of the complaint, it cannot be presumed that such alteration was authorized. It is also urged as a reason for sustaining the demurrer that it appears from the complaint “ that the plaintiff continued his work under the contract after the alleged modification of the same .by the board of public works,” and he must therefore be presumed to have accepted the modified contract and waived the right to insist upon its performance as originally made. We do not think there is enough appearing in the complaint to show any such waiver. The allegations of the complaint do not show a waiver. If there was a waiver on the part of the plaintiff, it must be made to appear in some way, and will not be presumed from the mere fact that he continued his work under his original contract after the unauthorized action of the board of public works in modifying and changing the same. It is also urged that the city had the right, under the contract, to make any reasonable variance from the plans and specifications, so far as the quantity of work to be done was concerned. If the city had such right under the contract, wre cannot say, from the allegations»of the complaint, that the change alleged to have been made by the city was a reasonable change. By the Court.— The order of the superior court of Milwaukee county is affirmed, and the cause is remanded for ' further proceedings.