Transfer Realty Co. v. City of Superior

XbRWIw, J. The contract for doing the paving in question was duly let to the defendant McDonnell according to plans and specifications and he entered upon the execution of the work, which was done under supervision of the board of public works and the engineer of the defendant city. During the progress of the work a dispute arose between the plaintiffs and the contractor, McDonnell, as to the meaning of the specifications and proper performance of the work under the contract. The plaintiffs employed an engineer to watch the work as it progressed, and complaints were made from time to time by the plaintiffs as to the character of the work performed and material used in the construction of the improvement. The vital question upon this appeal and the one upon which the case turns is whether the paving was done according to contract or substantially so. The court below found that the complaints made regarding the execution of the con [593] tract were without foundation, and that the work had been done in accordance with the contract and specifications except in the particulars set out in the statement of facts. Counsel for appellants attack the findings as not supported by the evidence and also insist that the findings do not support the judgment. We shall not extend this opinion by a discussion of the evidence. It is sufficient to say that after a careful examination of it we are convinced that the findings are well supported. No coinplaint is made that the contract was not properly let according to law to the lowest bidder. The court below in its findings points out the different particulars in which the contractor failed to literally comply with the specifications, and gives its conclusions that the specifications and contract under which the work was done were substantially complied with and that the amount deducted from the contract price, namely, $2,400, fully covered any defective performance or failure to comply literally with the contract. Stress is placed by counsel for appellants upon the fact that the board of public works first refused to approve the work because not in compliance with the contract, but after-wards did so upon investigation and recommendation from the common council of defendant city. On this point the court below found: That after refusal to accept, the board of public works caused the city engineer to investigate and examine the pavement and to compute and determine what deductions from the contract price should be made by reason of noncompliance with the contract and specifications, and the city engineer pursuant thereto computed and reported that a deduction of $2,400 would fully cover the difference between the value of the pavement as laid and its value had it been in strict compliance with the contract in all respects; that on January 2, 1912, the board of public works referred the matter to the common council for instructions; that a committee of the common council was appointed, which committee [594] on January 16, 1912, reported recommending acceptance of the work, deducting $2,400 from the contract price; that on January 16, 1912, the common council of defendant city adopted a resolution authorizing the board of public works to accept the work under the contract upon the contractor filing with the city clerk an acceptance of the proposed settlement; that on January 11, 1912, the contractor filed an acceptance of the proposed settlement; that on January 11, 1912, said board of public works accepted the improvement for the sum of $54,248.26; that thereafter certificates and bonds were by said board of public works duly issued for special assessments against the property of plaintiffs, the amounts so assessed having been reduced proportionately by the reduction from the contract price, and said bonds were on January 19, 1912, delivered to the defendant contractor. The foregoing findings are attacked by counsel for appellants on the ground that they do not show an acceptance by the board of public works. We think the action of the board clearly shows an acceptance and approval, and we know of no reason why it could not accept after proper adjustment of the claim had been made showing substantial compliance with the contract, even if it had no power before. The board of public works under the charter was charged with the duty of passing upon the work and approving or disapproving it. It is clear from the record before us that the board and all officers of defendant city acted in good faith in the matter and made diligent effort to ascertain what it was in duty bound to do regarding the contract in question. And it is plain that in its efforts to do its duty between all parties it first decided not to accept, and afterwards, upon more thorough investigation and agreement for reduction of the claim, decided to and did accept the reduced claim as before stated. It is argued by counsel for appellants that the board of public works had no power to change the contract. As a general proposition this may be conceded, but the board has power to pass upon the question of performance of the contract and [595] whether it had been in fact performed. This power vests in the board, necessarily, the authority to decide whether there has been substantial performance, because substantial performance is performance. 4 Dillon, Mun. Corp. (5th ed.) p. 2628; 1 Page & Jones, Taxation by Assessment, §§ 527, 531. Substantial performance of a contract such as the one under consideration is substantial justice, where no damage is suffered by failure to literally perform. Lawton v. Racine, 137 Wis. 593, 119 N. W. 331; Beaser v. Barber A. P. Co. 120 Wis. 599, 98 N. W. 525 ; Lafebre v. Board of Ed. 81 Wis. 660, 51 N. W. 952; Wells v. Western P. & S. Co. 96 Wis. 116, 70 N. W. 1071; Cook v. Racine, 49 Wis. 243, 5 N. W. 352; Colby v. Franklin, 15 Wis. 311; 1 Page & Jones, Taxation by Assessment, § 529; In re Apple (Iowa) 142 N. W. 1021. Considerable is said by counsel for appellants on the point that the board had no power to compromise. We need not pass upon the question whether compromise, except as a basis for substantial performance, is within the power of the board, because the adjustment was not a compromise of a disputed claim in the ordinary sense of that term. It was more in the nature of acceptance of the work on the terms of substantial performance. Such adjustments are equitable and just, and are held binding by the courts where full benefits have been received under them. 2 Dillon, Mun. Corp. (5th ed.) pp. 1255-1257. Some claim is made by appellants that it appears that the board of public works accepted .the work because ordered to do so by resolution of the common council and that the common council had no power to so order. The board of public works, when it accepted, did so as a board by virtue of the power vested in it under the law, and whether the common council by resolution or otherwise recommended such action is wholly immaterial. The board approves the improvement by force of the statute. Appellants rely upon Chippewa B. Co. v. Durand, 122 [596] Wis. 85, 99 N. W. 603; Wells v. Burnham, 20 Wis. 112; and. Cawker v. Central B. P. Co. 140 Wis. 25, 121 N. W. 888. In these cases it will he seen that no jurisdiction was evei obtained of the subject matter, because the contracts were in direct violation of law. In Wells v. Burnham, supra, in referring to the fact that the contract was let in violation of the provision of the city charter, the court said: “A violation of that provision must always, prima facie at least, affect the substantial justice of any tax in a case similar to this.” In Chippewa B. Co. v. Durand, supra, the basis of the decision is that the contract was not let in the manner prescribed by the city charter, hence no obligation was imposed upon the city to pay for the work. Likewise in Cawker v. Central B. P. Co., supra, the contract was held void because of failure to comply with charter provisions. In the view we take of the case other questions discussed do not require treatment. We are satisfied that the judgment below is right and should be affirmed. By the Court. — The judgment is affirmed.