City of Milwaukee v. Shailer

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. It is not important, as we conceive, to determine whether, by the order of April 6, 1892, and the subsequent efforts made to find a way around the obstacles" encountered in the shore end of the tunnel, there was a permanent, or only a temporary and tentative, abandonment of the line and grade defined by the original plan and specifications. The more reasonable view, perhaps, is that-the abandonment should be deemed to have been temporary only, and conditional, while experiments were made to find a more practicable route. The engineer of the city had reported the prescribed line to be impracticable, but the resolution of the board was silent on that point, and was too indefinite in respect to the course and ending of the detour ordered to be regarded as establishing a new line, or as amounting to1 an irrevocable abandonment of the old line; but it necessarily resulted that, when the work was taken out of the hands of the contractors, and the board of public works undertook to complete the tunnel, it was bound to proceed on the line of the agreement, and could not then change the line,- and have the right to charge the contractors with the extra expense of construction. By the contract power was reserved to the board to change the plans and specifications, but with equal explicitness it was provided that the price of extra work caused by a change should be agreed upon by the board and by the contractors before the work should be commenced. Practically, therefore, no change involving extra work could be made except my mutual agreement, and it certainly was not in the power of the board to suspend work by the contractors, and then adopt new plans to be worked out at their expense. If the original line was practicable, the board had its choice, to finish the tunnel on that line [111] and to look to the contractors for the expense in excess of the contract price, or to treat the contract as at an end and do with the work as it saw fit. If the line was impractica.ble, the contractors, on the discovery of the fact, were entitled to abandon the work, and it was not in the power of the board to require of them, against their consent, to construct a tunnel on different plans and specifications. That the tunnel as constructed was essentially different in plan and in the cost of construction from that of the contract, the proof in live record leaves no doubt; and, this point being controlling of all others in the case, there was no error in withdrawing the case from the jury. The judgment below is affirmed.