Amberg Granite Co. v. Marinette Cnty.
| Decision Date | 01 May 1945 |
| Citation | 247 Wis. 36,18 N.W.2d 496 |
| Parties | AMBERG GRANITE CO. v. MARINETTE COUNTY et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Marinette County; Gerald J. Boileau, Judge.
Affirmed.
Action on contract commenced by Amberg Granite company on May 7, 1943 against Marinette county and the First National Bank of Iron Mountain. Defendant county counterclaimed for damages for breach of said contract by plaintiff. Judgment was for dismissal of plaintiff's complaint and the granting of judgment on defendant's counterclaim in the sum of $9,475. Plaintiff appeals.
In 1940 Marinette county advertised for bids for the construction of a courthouse. The construction was under the supervision of the Works Progress Administration and involved some thirty-nine separate contracts. It was first contemplated that Bedford stone be used as the surfacing material. The Amberg Granite company suggested that it could furnish granite at a reasonable price if the state quarry located at Amberg, Wisconsin, could be used and W. P. A. labor furnished by the county. Accordingly, it submitted a bid on August 15, 1940, proposing to furnish the granite at a sum of $17,950, completion date to be six and one-half months from the date the W. P. A. labor was available. On September 26, 1940, a contract was entered into by the county and the Amberg Granite company wherein the county agreed to furnish a minimum crew of laborers consisting of one assistant superintendent, one general shop foreman, sixteen cutters, four blacksmiths, five jack hammer operators and twenty-five common laborers, and to furnish the state quarry. The contract makes the ‘Standard Form of the General Conditions of the Contract’ issued by the American Institute of Architects a part of the contract. Article 22 of that document provides that on specified defaults of the contractor or on any material breach of the contract the owner may terminate the employment after seven days' written notice, take possession of the premises and complete the work under the contract. On October 23, 1940, the defendant furnished an incomplete crew of workers but the testimony shows that by December 11, 1940 a full crew of workers was available and the actual fabrication of stone had begun. It was from this date (December 11, 1940) that the county figured the six and one-half month completion period. The stone cutters which were furnished were hand tool operators, classified and certified by the W. P. A. The work did not progress according to schedule and it became increasingly evident that the work could not be completed within the time allowed. The testimony shows that requests for additional laborers were made by the plaintiff from time to time. On February 25, 1941, the plaintiff by letter notified the defendant that it proposed to complete its contract, but required as additional compensation, $5,400 in cash and $6,250 in W. P. A., and additional time. On March 19, 1941, the architect recommended that the contract be terminated and thereafter on March 24, 1941, defendant notified plaintiff in writing that it claimed a material breach of the contract and would hold the Amberg Granite company liable for all damages thereby incurred. The plaintiff, by letter on April 8, 1941, refused to yield in the matter of termination and stated that it was ready and willing to carry out its contract.
At the time of termination, plaintiff had provided only sufficient stone to reach the water table. Defendant did not use the granite in completing the contract but finished the building above the water table with Bedford stone. Plaintiff then filed its claim with the county board of supervisors to recover the contract price of $17,950 less the amount of $3,500 already received and less what it alleged it would have cost to complete the contract. The claim was not allowed and the present action was commenced. Defendant counterclaimed for damages for breach of contract. The case was tried to a court and jury. By special verdict, the jury found (1) that it was not the intention of plaintiff and defendant that the ‘stone cutters' to be furnished were to be competent in the use of pneumatic stone cutting tools; (2) that defendant Marinette county did not fail to furnish the required number of stone cutters who were competent to cut granite; (3) that plaintiff notified defendant that it would be unable to fully perform the contract according to its terms; (4) that it would have cost the defendant $50,000 to complete that part of plaintiff's contract remaining unperformed on March 24, 1941. In passing upon motions after verdict, the learned trial judge said:
* * *
‘In view of the fact that the County would have been obliged to pay the plaintiff the sum of $14,450, if it had completed the contract, judgment should be for the defendant County, on its counterclaim, in the sum of $9,475.’
Thereupon, the court dismissed plaintiff's complaint and gave judgment on defendant's...
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