O'Neill v. City of Milwaukee

SiebecKER, J. The defendant city of Milwaukee contends that the referee and trial court erred in finding that the plaintiff had in all respects complied with the provisions of the contract. It is argued that the evidence fails to sustain the finding that the required area of the lake bed had been dredged by the plaintiff so as to make a level, smooth place for the crib to rest on at the place designated by the city engineer under the final agreement between the parties. It is without dispute that the place originally designated by the city engineer as the place where the crib was to be located was changed by mutual consent, when plaintiff attempted to dredge the required area at this place, on account of the serious obstructions in the lake bed, and that such change of location was to a point about thirty feet south from [40] tbe location originally designated and marked by tbe city engineer. Tbe court approved tbe finding that plaintiff properly dredged tbe required area of tbe lake bed at tbe place last agreed upon. This is mainly attacked upon tbe ground tbat tbe foreman in charge of tbe dredging crew stated tbat tbis dredged area was east of tbe original location, instead of south of it, as agreed upon by tbe parties and designated by tbe city engineer. There is considerable evidence tending to show tbat at tbe time tbe change was made tbe location of tbe dredge was moved to' tbe south to tbe place then designated by the city engineer. Subsequent location of tbe area dredged corroborates tbe fact tbat tbe dredging was at the place designated, and about thirty feet south of tbe original location for tbe crib. Upon tbis state of tbe proof it seems tbat tbe referee and court were justified in concluding tbat tbe foreman was in error when be testified tbat tbe dredging was east, instead of south, of tbe original location. Tbe evidence as to tbe extent of tbe area dredged and as to its being a smooth, level place is clearly sufficient to sustain tbis finding. Tbe facts tbat tbe crib was finally placed at tbis point; tbat when so placed it rested properly and firmly upon its base, correct as to level; and tbat tbis area presented evidences of having been dredged and excavated at its center for tbe projecting steel tube — would almost lead to a demonstration tbat a sufficient area bad been dredged, leveled, and smoothed at tbe place last agreed upon and designated by tbe city engineer for tbe location of tbe crib. Tbe main controversy raised on tbis appeal pertains to tbe alleged mistake of tbe city engineer 'and bis assistants, acting under bis direction and control, in failing to ascertain and point out tbe correct location for placing tbe crib at tbe agreed place. It appears tbat plaintiff notified tbe city engineer at tbe noon hour on December 24, 1900, of bis readiness to sink and place tbe crib; tbat thereupon tbe city engineer, by aid of bis assistants, attempted to point out tbe [41] ■exact point theretofore agreed upon and designated as the place of location; and that plaintiff had smoothed and leveled the designated area as required under the contract. In order to designate the place of locating the crib as agreed upon, the city engineer ordered two of his assistants to fixed points, from which the place of location could be determined hy triangulation, and he went upon the crib, and directed plaintiff and his employees to sink it at the point at which it was placed by them on the 24th day of December. Aside from the evidence showing these facts, there is additional evidence tending to support the referee’s findings that the board of public works, by and through the city engineer, as one of its members, took full charge and direction of setting the crib at the place of the lake bed as designated on the 24th ■day of December, and that the crib was in fact placed at the point designated by the city engineer, which was about fifteen feet south of the place theretofore fixed by agreement. Without further specific discussion of the evidence, we find from an examination of it that the findings of the referee -and the circuit court upon these points, as well as those .attacked upon this appeal, concerning the questions of the ■crib’s listing, the perfect construction and condition of the crib, the caulking of the well as required by the specifications, the injury to the crib resulting from the mistake of the engineer in failing to locate it in the place agreed upon T>y the parties, and the damages to plaintiff in making the necessary repair of the crib and placing it in a position to make it available for the purpose contemplated by the contract, are not against the weight of the evidence, but seem to be supported by it. It is contended that the court erred in construing the contract in holding that it was the duty of the engineer to place :and locate the crib. It is admitted that the city engineer was to do the requisite surveying for the work, and that all "the work covered by the contract was to' be done to the satis [42] faction of the board of public works and tbe city engineer. Tbe engineer bad designated, conformably to' tbe specifications, tbe place for tbe crib. Tbis place was subsequently abandoned, and another selected by mutual agreement. Tbis last point was not marked or designated by fixed monuments as a guide to plaintiff in completing bis contract in placing and sinking tbe crib. It therefore devolved upon the engineer, acting for tbe board of public works, to ascertain and point out tbis place to plaintiff on December 24th. It is-manifest that tbe parties so understood tbe contract from the practical construction they gave it on tbe day tbe crib was sunk and placed. Plaintiff called upon tbe engineer to perform tbis duty. He complied by taking charge of tbe undertaking to place tbe crib, and tile members of tbe board Were present, sanctioning tbe execution of tbe work. Tbe evidence indicates that tbe plaintiff and tbe members of tbe board of public works understood it was tbe duty of tbe engineer to find and designate tbis place. Tbe injury to tbe crib, and tbe consequent extra expense incurred by tbe plaintiff to repair and place it at tbe agreed-location conformable to tbe obligations imposed by tbe contract, were due to tbe default of tbe board of public works, representing tbe defendant city, in performing one of its corporate functions. After tbe board of public works were fully informed of tbe failure in locating tbe crib as agreed, and were notified by plaintiff that be would look to defendant to make good to him all tbe damages resulting therefrom, tbe board insisted that plaintiff fully perform and carry out all tbe obligations-imposed by tbe contract which then remained unfulfilled. Tbe plaintiff thereafter performed bis contractual obligations -by placing tbe crib at tbe place agreed upon, and be repaired tbe injuries caused by tbe mislocation under protest of any waiver of bis claim for extra expenses be incurred through'tbe city’s default. Under such circumstances plaint [43] iff does not waive bis claim- for damages bj proceeding to-complete tbe contract upon demand of tbe defaulting party. In tbis situation be may perform so far as be is permitted, and recover tbe damages suffered from tbe breach. Markey v. Milwaukee, 76 Wis. 349, 45 N. W. 28; McMaster v. State, 108 N. Y. 542, 15 N. E. 417. These considerations lead to tbe conclusion that tbe city was in default in performing its part of tbe contract, resulting from tbe mistake of tbe city engineer in failing to locate and sink tbe crib at tbe place agreed upon by tbe parties, and that such default resulted in damages to tbe plaintiff which be is entitled to recover in tbis action. Markey v. Milwaukee, supra; Wyandotte & D. R. R. v. King Bridge Co. 100 Fed. 197; Horgan v. Mayor, 160 N. Y. 516, 55 N. E. 204; Seymour v. Long Dock Co. 20 N. J. Eq. 396. Tbe amount of extra expenses incurred by plaintiff in the repair of tbe injuries to tbe crib and sinking it at tbe agreed place, found by the referee and court, is not seriously questioned. It is argued that tbe amount allowed plaintiff for bis personal services is excessive and not sustained by the proof. Tbe evidence upon tbe point was conflicting, and the finding must stand as not against tbe clear preponderance of tbe evidence. We find no grounds upon which any of -the findings of fact can be disturbed. The judgment was properly awarded for the amount, with interest. By the Gourt. — Judgment affirmed.