Riesen v. City of Milwaukee

Winslow, J. The plaintiff’s claim is that the building contract gave him the option as to whether steam or hy [655] draulic elevators should be used in the building, and this is the only question we find it necessary to consider. It is certainly true that where an obligation is in the alternative, i. e. to do one thing or another, the right of election (at least up to the time when the contract is to be discharged) is with the promisor, unless the contract expressly or by necessary implication vests the right elsewhere. Dessert v. Scott, 58 Wis. 390; Drake v. Harrison, 69 Wis. 99. The contract in question is to be construed in the light of these principles. The contract itself contains no express provision giving the contractor any right of election, nor does it even contain a provision in terms allowing the contractor to instal steam elevators or hydraulic elevators. In fact it does not refer to elevators, except as they are included in the general provision that the building is to be built according to the plans and specifications, which are thus imported into the contract. So the right of election, if it exists in the plaintiff at' all, must be found in the plans and specifications, or rather in the specifications, because the plans contain nothing to justify the plaintiff’s claim. A casual glance at the specifications would perhaps lead one to think that the contractor had the choice as to which kind of elevators he should furnish, but more careful examination seems to make it certain that this is not the proper construction. Remembering that the specifications were adopted long in advance of the contract, and for the primary purpose of providing a basis for bids, it becomes very apparent that the option given to contractors or bidders is an option in bids, not an. option in elevators after the contract is made. The specifications say that “ proposals will be received for either steam or hydraulic elevators,” and later they specify certain requirements that must be met if steam elevators are used, and. certain others that must be met if hydraulic elevators are used. These alternative requirements are of course essential in order to inform the [656] bidder wbat be must meet in case be exercises bis option, but it is not perceived bow they afford ground for claiming that when the contract has been let for the whole building, including elevators, the contractor may choose which kind of elevators he will put in. The bidder had the right to choose on which style he would bid, being informed that if he bid on one kind he must meet certain conditions, and if upon the other kind he must meet certain other conditions; but when he became a contractor, the bidder’s option had necessarily passed,— it had become fundus officio. Certainly it cannot be argued with reason that the specifications were intended to reserve one option to the bidder and one to the contractor. The plaintiff himself would doubtless admit that he had his choice to bid for either steam or hydraulic elevators, and that if he had bid in the alternative it would have been the right of the city to choose which kind it would use. In other words, there was an option on bids, which was to be exercised by the bidders, and an' option on the elevators after the bids were in, which was to be exercised by the city. The bidder declined to exercise his option in bidding. Did he thereby destroy or acquire to himself the city’s option ? Clearly not; the city’s option remained intact. By bidding and entering into the contract in general terms, as he did, he waived the option which the specifications tendered him, and, in effect, offered to put in either steam or hydraulic elevators, as the city might by timely action select. This being our construction of the contract, the judgment below must be affirmed. By the Court.— Judgment affirmed.