Cowin & Co. v. City of Merrill
| Decision Date | 09 December 1930 |
| Court | Wisconsin Supreme Court |
| Parties | COWIN & CO., INC., v. CITY OF MERRILL ET AL. |
OPINION TEXT STARTS HERE
Appeal from an Order of the Circuit Court for Lincoln County; A. H. Reid, Circuit Judge.
Action by Cowin & Co., Inc., against the City of Merrill and others. From an order overruling demurrer to the complaint, the defendants appeal.--[By Editorial Staff.]
Affirmed, and remanded, with instructions.
Action commenced February 20, 1930; order overruling demurrer filed March 29, 1930.
The complaint alleges that the city of Merrill made a contract with the Welsh Paving Company of Minneapolis for paving certain streets within the city of Merrill. The contract was performed and work completed November 3, 1925. The plaintiff furnished to the contractor certain material used in the paving work; that a balance of $428.83 remains due plaintiff; that the contractor has failed to pay and is insolvent; that the city failed and neglected to require from the contractor any bond conditioned for the payment of persons entitled thereto of all claims for work or labor performed and materials furnished,as provided by section 289.16, Stats.; that the plaintiff's claim was duly filed against the city and disallowed and this action brought within the time prescribed.
There is a second cause of action of the same nature based upon a demand assigned to the plaintiff by W. S. Nott Company arising in the same manner and upon which there is a claimed balance due of $485.56. It is alleged that the plaintiff relied upon the defendant city and its officers to proceed according to law and to obtain from the contractor the bond thereby required for the protection of materialmen and laborers, and, by reason of the failure of the defendant so to do, the plaintiff has been unable to collect payment for the materials furnished.
The court overruled the demurrer of the defendant city of Merrill.
Carlyle B. Wurster, of Merrill, for appellants.
Brayton E. Smith, of Wausau, for respondent.
[1] The distinction is well established between the responsibilities of a municipality for acts done in its public capacity in the discharge of duties imposed upon it by the Legislature for the benefit of the public, and acts done in what may be styled its private corporate or business capacity. An express statute is necessary to render municipal corporations liable to private actions for omission to perform a corporate duty imposed by general law from the performance of which the municipalities derive no compensation or benefit in their corporate capacity. The Legislature by its act creating section 289.16 imposed a duty upon the defendant. This statute reads:
“289.16.--All contracts involving one hundred dollars or more * * * when the same pertains to or is for * * * any * * * public improvement, public road, * * * of whatsoever kind of the state, or of any county, city, * * * shall contain a provision for the payment by the contractor of all claims for such work and labor performed and materials furnished, and no such contract shall hereafter be made or let unless the contractor shall give a good and sufficient bond, the penalty of which shall not be less than the contract price, conditioned for the faithful performance of the contract, and the payment to each and every person or party entitled thereto of all the claims for work or labor performed, and materials furnished. * * *”
Subsection (2) provides for the maintaining of an action against the contractor and the sureties after such bond has been taken by the city.
[2] Legislative intent to afford to materialmen and laborers on public improvements a complete protection against loss is evident. The failures and insolvencies of contractors engaged in public work, together with the law denying to materialmen and laborers liens against municipalities resulting in losses, prompted the Legislature to enact this remedial legislation, its purposes being to give further protection to municipalities and to protect against loss those furnishing labor and material for the construction of public works. The...
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