Bentley v. State

• Decision Date: 29 January 1889
• Citation: 73 Wis. 416,41 N.W. 338
• Parties: BENTLEY ET AL. v. STATE.
• Court: Wisconsin Supreme Court

73 Wis. 416

41 N.W. 338

BENTLEY ET AL.

v.STATE.

Supreme Court of Wisconsin.

Jan. 29, 1889.

Original action against state instituted under Rev. St. c. 139.

Chapter 252, Laws 1882, went into effect March 31, 1882, and authorized the construction of two transverse wings to the state capitol,--one on the north, and the other on the south,--to be built by contractors according to the plans and specifications therein provided for, and under the superintendence of an architect or superintendent therein authorized; the bid or bids therefor not to exceed, in the aggregate, $100,000 payable in 1882, and $100,000 payable in 1883. The said act also required the board of commissioners therein authorized to procure suitable and proper plans, drawings, and specifications for the construction of said buildings, and, after the adoption of the same, to advertise for 20 days for sealed proposals for the erection of said buildings; that the contract therefor should be let by such board to the best responsible bidder or bidders, to whom such contract was to be awarded, and with whom it should be made. The complaint alleges, in effect, that May 25, 1882, the said board of commissioners, having been fully appointed and duly organized, caused notice to be given that until June 15, 1882, at 10 o'clock A. M., sealed proposals in the form of a contract, for which blanks were furnished by said board, would be received by them for the construction of said two wings, designed by D. R. Jones, architect, and stating that plans and specifications therefor would be on exhibition at the office of said Jones, in Madison, after May 25, 1882; that the plaintiffs made a bid for such construction of said two wings in accordance with the blank contracts furnished to them by said board; that when such proposals were opened, June 15, 1882, it was found that the lowest bid exceeded the amount of the appropriation therefor, and hence was not accepted; that prior to that time said board had employed said Jones as such architect and superintendent, and had given him the general charge and control of the same, and of the letting of the contract; that said Jones then and there twice successively changed said plans and specifications, so as to make said wings cheaper than originally designed, and said board requested the plaintiffs and others to again bid on the same according to such altered plans; that, while the plaintiffs were required to enter into a contract for the doing of the whole work, it was well understood that large portions of the material were to be furnished by subcontractors, who made their bids therefor, and who were then and there present, and modified their bids according to such altered plans and specifications; that among other things there was to go into said building a large quantity of cast-iron work, minutely described in said specifications, which was to be made and furnished by a subcontractor; that one James Fyfe, of Portage, Wis., did then and there figure and bid on such work, and make the lowest bid for the same; that these plaintiffs did not know said James Fyfe, but said Jones, who knew him, told the plaintiffs that he was reliable, and requested these plaintiffs to accept his bid for such castiron work, and they did so at his request, requiring said Fyfe to furnish the same according to the said specifications and contract, by which all the materials furnished were subject to the approval of said Jones, the superintendent of the building; that these plaintiffs did thereupon make the bid of said James Fyfe for cast-iron work the basis of their calculation, and bid for the whole work, and that upon their final bid so made, after the said several modifications of said plans and specifications, the contract was let to them, and that they then, with the approval of said Jones, let the cast-iron work to said James Fyfe; that, omitting the formal parts, the plaintiffs, as parties of the first part, and the state of Wisconsin, as party of the second part, June 16, 1882, made, entered into, and executed the following contract:

“That the said party of the first part hereby agrees to furnish all the materials, and perform all the work, required to erect and complete the building of two transverse wings to the present state capitol at Madison, in the state of Wisconsin, and do everything necessary and required to be done in, to, and about said building, according to the plans and specifications made for the same by D. R. Jones, architect; which plans and specifications are signed by the said Jones, and dated May 25, A. D. 1882, and which were twice revised by the said Jones, architect, and Henry Koch, consulting architect, on the 15th day of June, 1882, and after such revision were adopted by the said commissioners. All the work shall be executed in a thorough, complete, and most workman-like manner, and agreeable to such directions as may be given from time to time by said D. R. Jones, architect and superintendent, (or such person as may be employed by the party of the second part to superintend the work,) and to such superintendent's full and entire satisfaction, without reference thereon to any other person. If any alteration should hereafter be made by order of the party of the second part, or their superintendent, which they may deem necessary, varying from the plans and specifications as revised as aforesaid, either by adding thereto, or diminishing therefrom, or otherwise, such alterations shall not vacate the contract hereby entered into, but the value thereof shall be ascertained by said superintendent, and added to or deducted from the sum of money hereinafter mentioned, as the case may be; nor shall such alterations, either in addition, dimunition, or otherwise, supersede the conditions for the completion of the whole of the work at the time herein expressed, but the party of the first part shall, if such alterations of whatever sort require it, increase the number of his workmen so that the same, as well as the work contained in the plans and specifications as so revised as aforesaid, shall be completely finished, and so delivered up to the party of the second part, clean and in good order for use, by the 1st day of January, A. D. 1884; and the said party of the first part shall have all wood, flooring, and joists, and roof timber, necessary for the building, piled in the city of Madison, outside of the capitol grounds, before the 1st day of November next, (1882,) all flooring to be covered from the weather; and shall also have all doors, sash, inside and outside finishing lumber, prepared in readiness for putting up before the 1st day of April next,--it being the intention to thus secure better seasoned wood. If any doubt or doubts should arise as to the quality of materials being used, or of the workmanship, during the execution of the work, or as to estimating allowances for extra material or work, (should any occur,) or making out the accounts as to such extras, or other work for which the party of the first part may think he has a claim, over and above the sum hereinafter mentioned, the admission or allowance for such materials or work, or of any such claim or claims, shall be judged of, determined, and adjusted solely by the superintendent; it being the intent of the parties to this contract that all of such work, of every kind, that may be necessary for completely finishing the work proposed, or for the rectification of any failure from any cause whatever arising, and the well maintaining, sustaining, and supporting the whole work, as well as alterations and additions, should such be made, so that the whole may remain sound and firm, are implied in the aforesaid specifications as so revised as aforesaid, although the same may not therein be specifically expressed; and it is hereby agreed that on this, as well as on all other matters of difference, no reference to any other person than the superintendent is to be allowed or admitted, and his determination shall be final and conclusive. The masonry to the bottom of the water-table, but no further than to the top of the principal or first story, shall be laid on or before the 10th day of November, 1882, and securely protected from injury by the weather, during the season of frost, by a covering of plank, and said masonry shall also be well banked with earth to protect it from water. If the party of the first part should neglect or refuse to carry on the work with such dispatch as shall be thought necessary by the superintendent to complete the same by the time hereinbefore mentioned, or should neglect or refuse to furnish such materials for or to do the work as by the superintendent directed, it shall be lawful for the party of the second part, or their superintendent, to employ such other person as said party of the second part shall think fit or necessary to furnish such unprovided materials, or to finish any of the unfinished work, after having given notice in writing to the party of the first part, three days before employing such person or persons; said notice to be left at the shop, counting-house, or usual place of abode of the party of the first part, or delivered to the foreman on the work; and the bill or bills of any artificer that may be so employed, or for materials furnished, and all expenses incidental thereto, shall be deducted out of any money that may be due, or to become due, on this contract, and owing, to the party of the first part, or any part thereof, as the case may be; and, in case of a deficiency, the party of the first part, and his sureties, shall be held liable therefor; and the said superintendent is hereby empowered to have any material which he may reject removed from the premises forthwith, to secure its non-usage. No part of the work covered by this contract is to be relet or subcontracted without the consent, in writing, of the party of the second part. In consideration of the faithful performance by the...