Park v. City of Milwaukee

Owen, J. Plaintiff brought this action as a taxpayer to enjoin the payment of the final estimate on the ground that the contractor was being allowed compensation for some 47,000 tons of stone, amounting to $97,995, in excess of — 283 — the cubical contents of the breakwater according to the original plans and specifications, which allowance constituted a fraud upon the taxpayers and an unlawful diversion or paying out of public funds. It is not questioned but that the original contract was properly entered into and that all charter and statutory provisions governing the letting of contracts on the part of the city were complied with. The claim is that the breakwater was not built in accordance with the original plans and specifications nor in accordance with any lawful change made in said plans and specifications, and that the city had no authority to allow or pay the contractor for a greater amount' of material than was required for the theoretical, mathematical contents of the breakwater as revealed by the original plans and specifications. With reference to a change in the plans and specifications the contract provided that “all such alterations or changes may be ordered in writing by the superintendent of bridges and public buildings, otherwise they will not be acknowledged and the contractor will be held to the original plans and specifications.” It is conceded that, so far as the controversy here involved is concerned, no alterations or changes in the original plans were ordered by the superintendent of bridges and public buildings in writing. It also may be conceded that the amount of material for which the contractor was allowed compensation exceeded the theoretical, mathematical contents of the original plans and specifications, and the question which we are required to consider is whether a taxpayer may restrain the payment for such excess material. Sec. 20, ch. V, of the’ city charter confers upon the commissioner of public works power “to adjust and determine all questions as to the amount. earned under any contract by the contractor or contractors according to the true intent and meaning of the contract; and such adjustment and determination by said commissioner shall be final between the parties and binding upon them.” This provision of the — 284 — charter also found expression in the contract in practically identical language. The decision of the commissioner of public works, pursuant to this power, is final unless impeached for fraud, accident, or mistake; “and the mistake here referred to is not a mere error in judgment as to the quality of the work or the responsibility for defects therein, upon conflicting evidence, which may be overthrown by a preponderance of evidence before the jury, but it means unintentional misapprehension or ignorance of some material fact, and it must be clearly established by the evidence, and so gross ahd palpable that it is equivalent in its effects to dishonest, fraudulent, or merely arbitrary action.” Keachie v. Starkweather D. Dist. 168 Wis. 298, 304, 170 N. W. 236, and cases there cited. That a controversy existed between the contractor and the city with reference to the amount of material that was going into the breakwater plainly appears from the statement of facts. This controversy was waged for many months, and in one way or another was brought to the attention of about every department of city government in an}' wise connected with that or similar enterprises on the part of the city. In meeting the claims and demands of the contractor the city requisitioned the advice, service, and experience of the city engineer, 'the superintendent of bridges and public buildings, the commissioner of public works, the harbor commission, the city council, the mayor, and the city attorney. There is not the least suggestion of a purpose on the paid of any official to betray the interests of the city and to unduly favor the contractor, and in view of the open and notorious manner in which the matter was handled it would indeed be difficult for any one official to accomplish any such result. At the suggestion of the mayor, the head of the city government, the common council referred the matter to the harbor commission for investigation and report, no doubt upon the theory that that was the most appropriate and responsible body to ascertain the facts and — 285 — to formulate the policy which the city should pursue in the pending controversy. That body made a report to the city council in which it found a substantial compliance on the part of the contractor with the terms of the contract, and in its report specified the amount of material which in its opinion the contractor had in position and for which it should be allowed compensation in accordance with the original plans and specifications. This report was approved by a resolution of the city council, and thereafter estimates were certified and approved by the commissioner of public works in accordance with the recommendation. In view of all this publicity, investigation, and conference, how can it now be said that the commissioner of public works acted ignorantly or fraudulently in certifying to the amount of material for which the contractor was entitled to payment? A mere statement of the manner in which the controversy was dealt with by the city most emphatically negatives any such conclusion. The trial court not only refused to find that the action of the commissioner of public works was characterized by fraud, ignorance, or mistake, but made an affirmative finding that the breakwater was built in substantial compliance with the original plans and specifications. That finding is assailed as unsupported by the evidence. But we think the finding is well supported by the evidence, and this in face of the concession that the material paid for exceeded the theoretical, mathematical contents included within the original plans and specifications. It must not be forgotten that the bottom of the lake proved to be a shallow crust which gave way under the weight of the breakwater, causing the same to sink into several feet of mud. This in and of itself increased the perpendicular lines of the breakwater. It also made necessary a broader base with a corresponding change of slope. It further appears that no such a structure can be built on line and that it is customary to* allow one foot leeway in the placing of stone under water. — 286 — It will thus be seen that under no circumstances does the theoretical, mathematical contents of the breakwater limit the amount to which the contractor may be entitled; that the sinking of the structure compelled the use of a greater quantity of material, the exact amount of which is difficult to estimate; and that the amount allowed by the commissioner of public works was in harmony with the combined judgment of every department of city government qualified to advise in the premises, with the possible exception of the acting superintendent of bridges and public buildings. But even though we were obliged to hold that the finding of the trial court that there was a substantial compliance with the original plans and specifications is not supported by the evidence, the result contended for by plaintiff would not necessarily follow. While it is true that the plans and specifications in the particulars under discussion were not changed by written order, the conduct of the city certainly constituted an acquiescence in the established lines of the structure and constituted a waiver of the provisions of the contract requiring changes in the plans and specifications to be by written order. There is no provision of law requiring contracts of this nature to provide for a change of plans and specifications by written order. In this contract that provision was inserted for the benefit of the city. It was a provision which might be waived by the city. First Sav. & T. Co. v. Milwaukee Co. 158 Wis. 207, 232, 148 N. W. 22, 1093. The city having the power to waive the requirement, its acquiescence in and acceptance of the structure, as the result of several months’ discussion, conference, and negotiation, clearly indicated its intention to do so. Neither is appellant’s contention that the city is paying for something which it did not receive, tenable. There is quite convincing evidence in support of the finding of the court that the original plans and specifications provided for — 287 — too light a structure, and that a heavier structure was in accordance with a wiser and more cautious policy. We can discover no error justifying a reversal, and the judgment must be affirmed. By the Court. — Judgment affirmed.