Burnham v. City of Milwaukee

• Decision Date: 11 October 1887
• Citation: 69 Wis. 379,34 N.W. 389
• Parties: BURNHAM v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

69 Wis. 379

34 N.W. 389

BURNHAM

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

October 11, 1887.

Appeal from Milwaukee county court.

This is an appeal from an order refusing to strike out seven different portions of the complaint as irrelevant and redundant, and refusing to make nineteen other different portions more definite and certain. The complaint covers seventeen printed pages, with three bills of particulars thereto annexed as a part thereof, marked, respectively, “A,” “B,” and “C,” covering seven additional printed pages. It is to the effect that, October 29, 1880, one Michael Rice (with the plaintiff Burnham and one S. S. Bryant as sureties and guarantors) contracted with the city to furnish all materials and do all work necessary and required for the construction of a sewer of about 4,500 feet in length, at a certain price, in accordance with certain plans and specifications, to be done under the direction and superintendence of the board of public works, who reserved the right to make such changes in the plans and specifications as such board might deem necessary,--any increase in the amount of work done or materials furnished to be paid for according to the quantity actually done and furnished, and such amount to be finally and conclusively adjusted and determined by said board; that, upon commencing the construction of the sewer, Rice was directed by the board to build 1,200 feet of it with brick, instead of wood, as provided in the contract, which he did under the daily directions of the board; that Rice accordingly did extra work and furnished extra materials to the amount of $19,403, a bill of the particulars of which items was attached to the complaint, and marked “Exhibit A;” that by reason of such large outlays, and the refusal of the board to give estimates and certify to such extras, Rice became insolvent, and thereupon the board notified Burnham and Bryant that it would require them to carry out the contract, to which Rice consented, and thereupon, and with the consent of the board and both sureties, assigned the contract to Burnham, together with all his claim for money earned, and to be earned, under it, and for and on account of said extra work and materials; that accordingly, in the completion of the sewer under the contract, Burnham assumed in every respect the position and situation of Rice, and Burnham and Bryant agreed to continue their liability for the complete performance of the contract; that thereupon, and under the daily supervision, control, and direction of the board, Burnham entered upon the work of building the sewer, and finally completed the same to the satisfaction of the board; that in doing the same he furnished extra work and materials to the amount of $10,949.01, of which a bill of particulars is attached to the complaint, and marked “Exhibit B;” that January 30, 1885, the sewer was accepted by the board, and that then the total amount of the extra work done and extra materials furnished by Rice and the plaintiff, as aforesaid, (less $1,750, what it would have cost to have constructed the straining chamber according to the original specifications,) was $28,593; that, under the contract, the amount due the plaintiff for the contract price, and said extra work and materials, was to be adjusted and allowed by the board, and could only be collected upon an estimate given by the board; that the members of the board were anxious and desirous of concealing from the common council and the citizens of Milwaukee the fact that, by their incompetency and ignorance, so many changes and alterations had been necessary, and had been made, and of the fact that so much extra work had been necessary; that the members of the board were desirous of...