Kinney v. Manitowoc County, Wis.

BAKER, Circuit Judge, after stating the facts, delivered the-opinion of the court. 1. The first count was not sustained by the evidence. The county is a territorial subdivision of the state. As a municipal corporation, it is an involuntary one, created by the Legislature without regard to the will of the inhabitants, who constitute the corporation, and whose property, through taxation, is liable for the debts of the corporation. It is right, therefore, that the debt-making power be limited to action taken by the county board in lawful session, or to action of a committee of the board taken in pursuance of a resolution or ordinance of the board adopted in lawful session. [494] The board,.by its resolution, did not lay upon the special committee the duty of building a courthouse. The resolution, as a whole, shows that the board believed a new courthouse desirable, and that a committee should investigate and report regarding “the best manner of raising funds,” and should submit “recommendations relative to the matter Of erecting a courthouse”; but the decision to build or not to build was clearly with the board. Now, what meaning, in connection with the committee’s duty to investigate the building question and the matter of funds and to submit their rec•ommendations, should be assigned to the words “procure plans and specifications”? If the committee had been authorized to go ahead and erect a courthouse, undoubtedly the words would have justified them in engaging architects to furnish complete, detailed working plans and specifications. But when the board reserved to themselves the decision to build or not, as they might think best, after hearing the report of their committee, what right had the committee and the plaintiffs to suppose that the board were ordering working plans? The selection of an architect to furnish working plans means that the competition between architects on their preliminary plans is at an end. The builder—in this case the board—wants to see the competitive preliminary plans, and, after he has decided to go ahead, it is time enough to procure the working plans. To hold that the board intended that the committee should procure working plans is to convict the board of the foolish extravagance of ordering working plans without knowing whether they would want the work done. We think the words “plans and specifications” in the resolution meant and were intended to mean the preliminary plans and preliminary specifications described in Kinney’s testimony—a meaning in which the words, in a proper context, are commonly taken by architects and laymen alike. The contract sued upon, being for working plans, was beyond the power of the committee to make. Compare with French v. Dunn County, 58 Wis. 402, 17 N. W. 1, where the committee acted strictly within the letter of the board’s resolution. The resolution recognizes the desirability of a new courthouse at a cost not exceeding $100,000. The contract calls for plans for a building to cost $100,000, exclusive of heating and plumbing. Thus the contract makes an’ exception that is not named in the resolution. And the plans themselves indicate that the courthouse would not be a finished structure without the inclusion of the heating and plumbing appliances. Why should a great stack be built unless the heating plant was to be installed, for which room was made in the basement? If a complete building without the heating plant was intended, why were not chimneys for stoves provided in each room ? If plaintiffs intended a building complete without plumbing, and if they did not expect the plumbing to be built into and with the building, why did they provide rooms on the various floors, which would stand unfinished and useless unless the plumbing was installed? We believe, therefore, that plaintiffs understood that the board had in mind in their resolution a courthouse that should include the heating, lighting, and plumbing appliances that are cus [495] tomarily built into a courthouse at this day. But, if plaintiffs did not actually so understand the resolution, they should have done so, for that is its meaning. Turney v. Town of Bridgeport, 55 Conn. 412, 12 Atl. 520. The contract sued upon, being for plans for a courthouse which would cost materially more than $100,000 to finish, was beyond the power of the committee to make. The resolution required the committee to file their report of recommendations and plans by April 1st. They could not enlarge their ■own commission. The contract extending the time for plaintiffs to prepare plans to April 21st was beyond the power of the committee to make. Plaintiffs did not perform their part of the contract. If plaintiffs furnished something more than the preliminary plans and specifications which architects provide gratuitously in the hope of being engaged to make the working plans, they confessedly failed to deliver plans from which a builder could erect a courthouse. 2. The evidence fails to support the second count. The plans were not accepted. They were not used in erecting a building. No use of them by the board is shown. If individual members learned therefrom anything respecting the character and cost of a suitable courthouse for Manitowoc county, there is no evidence that the county, through the board, received and used any such information. But, furthermore, there is an absolute want of proof of the fair value of any use made of the plans, if the county could be charged with the use above mentioned. The $3,500 stated in the contract is no evidence of the fair value of such use. The $3,500 was the agreed price for complete, detailed working plans and specifications. Such were neither furnished nor used. The judgment is affirmed.