Casgrain v. Milwaukee County

WiNslow, J. It is clear that under the terms of the contract and specifications upon which the appellant has stood ; since the beginning of this litigation the county is bound to 'furnish the pipe and castings in controversy. But it is ' claimed by the county that there was a mutual mistake [117] made in the contract; that the specifications which conr tained this provision had been prepared previously, with the idea of making a different contract from the one finally made; and that the ' clauses which provide for the furnishing of pipes by the county were left in the specifications by mistake, the intention of both parties being that the contractor should furnish all the pipes. Much testimony was introduced, tending in some measure to support this claim. It consisted, among other things, of previous advertisements and bids for the work, of conversations, and of the statements of various members of the county building committee as to their understanding of the terms of the contract. . Doubtless there wras much of this testimony which was inadmissible under the pleadings, but it is unnecessary to decide this question, because all the testimony was admitted, and the circuit judge, after considering the same, has found that there is not that clear and satisfactory evidence of fraud or mistake which authorizes a reformation of the contract. After examining all the testimony, we are satisfied that under the' rule frequently laid down by this court we cannot reverse this finding of the circuit judge. This is probably a sufficient answer to the appellant’s claim of mutual mistake. There is, however, another answer equally conclusive. The appellant relies upon the contract, but seeks its reformation. The reformation of contracts is purely cognizable in equity. It must be done by equitable action or by equitable counterclaim. It cannot be by mere defense in an action at law. In the present case there has been no action brought nor counterclaim interposed to reform this contract;. consequently it must stand as written. It is claimed that the pipe and castings in question were extras. Not so. Extras consist of labor or materials not called for by the original contract. These materials are [118] all called for in. tbe contract. They were not furnished by the party who agreed to furnish them, but they cannot be called extras. It is said that the contract is ambiguous, and that consequently the advertisement and bid which preceded it, as well as the bond accompanying it, must be resorted to, to properly construe its meaning; and, further, in this direction, it is said that the practical construction placed upon an ambiguous contract by the acts of the parties is entitled to weight. It is sufficient to say on these various propositions that the contract does not seem to us to be ambiguous. When the terms are clear and unambiguous they must control; they are not aifected by previous negotiations nor subsequent conduct of the parties. ' There are no other points requiring attention. By the Court.— Judgment affirmed.