First Sav. & Trust Co. v. Milwaukee Cnty.

• Decision Date: 17 June 1914
• Citation: 158 Wis. 207,148 N.W. 22
• Court: Wisconsin Supreme Court
• Parties: FIRST SAVINGS & TRUST CO. v. MILWAUKEE COUNTY.

158 Wis. 207

148 N.W. 22

FIRST SAVINGS & TRUST CO.

v.MILWAUKEE COUNTY.^d1

Supreme Court of Wisconsin.

June 17, 1914.

Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.

Action by the First Savings & Trust Company, as receiver of the owner enjoining a construction company, against the county of Milwaukee. From a judgment in favor of plaintiff for less than the relief demanded, both parties appeal. Affirmed on plaintiff's appeal, and modified and affirmed on defendant's appeal.

General Nature of the Action.

The action arises out of a contract for the construction of the Grand avenue viaduct in the city of Milwaukee, made October 21, 1908, between the National Engineering & Construction Company and the defendant, pursuant to the provisions of chapter 444, Laws of 1903. This contract recites that the terms of the contract between the county and the engineer are known to the parties. The amount claimed exceeds $200,000. It was stipulated on the trial that all issues in the action be tried except the amount and the extent of the claims of the plaintiff; that the court might enter an interlocutory judgment upon such determination; that at a subsequent time, to be fixed by the court, testimony might be taken as to the extent and amount of all claims of the plaintiff that shall be determined by the interlocutory judgment to be lawful claims, and findings made thereon by the court; and that either party, after the entry of the interlocutory judgment, might appeal therefrom and have the issues raised thereon determined before taking the testimony on the extent or amount of any items or claims that may be allowed by the court. The plaintiff brings this action as receiver of the National Engineering & Construction Company.

Material Provisions of the Contract Involved on This Appeal.

Section 4 provides that the viaduct shall be constructed exactly and completely according to the conditions and provisions of the contract and of the plans and specifications.

Section 6. “The work described in this contract shall be done to the satisfaction of the engineer, who shall be sole judge as to the amount, quality, acceptability and fitness of the material and work, and shall have the right to correct any errors or omissions in the plans and specifications, when such correction is necessary for the proper fulfillment of their intention.”

Section 7. The contract price for the work was agreed upon at $372,000, less the sum of $30,654.75 allowed a former contractor, the Newton Engineering Company, for work on said viaduct. The contract price was to be paid and received as full compensation for all material, tools, use of the same, labor, loss or damage arising out of the work, loss from action of the elements, loss from any unforeseen obstruction or difficulty, and for all risks of every description connected with the work, also for all expense incurred by or in consequence of the suspension or discontinuance of the work provided for.

Section 8. “The contractor agrees that the board on written order of the engineer, approved by said board, may change any portion of the work from time to time, and make any addition thereto, or deduction therefrom, and said contractor hereby waives any right to damage that he may be entitled to by reason of such changes, and all additions to or deductions from the contract price, except as otherwise provided herein, shall be made, as hereinafter stipulated. But no claim for extra work or materials shall be considered or allowed, nor shall any changes in the work be made by the contractor, except on such written order. * * *

“In case any extra work shall be required in the proper performance of the work contemplated under this contract, the board reserves the right to have such extra work done by any other firm or corporation than said contractor whenever the consent of his bondsmen to such extra work cannot be secured.”

Section 10. “The engineer shall have power, without further authority from the board, to condemn all work which in his opinion is not done in accordance with this contract and specifications, or is not done to his satisfaction. The engineer shall also have power, with the approval of the board, to draw detail plans, to change the plans, order extra work, or grant it extension of time.”

Section 17. “The contractor shall not be entitledto any claims for damages against the county for any hindrance or delay from any cause whatever in the progress of the work, or any portion thereof, but said hindrance may entitle said contractor to such extension of time for completing the contract, from causes not elsewhere stated, as may be determined by the engineer, with the consent of the board, provided the contractor shall make written claim giving the cause of the detention at the time of the detention.”

Section 25. “The contractor is required to check all leading dimensions and clearances and to become responsible for the exact position and elevations of all parts of the work, and the approval of the working drawings by the engineer shall not relieve the contractor of its responsibility.”

Section 28. “The contractor is presumed to know and to be satisfied by personal examination of the nature, character and location of the proposed work and all facts and circumstances respecting the same, and no information derived from maps, profiles, drawings, specifications, or from the engineer or his assistants shall in any way relieve the contractor from any risk or from fulfilling any and all of the terms of the contract and specifications.”

Section 29 provides that the viaduct is to be completed according to plans 1 to 10, inclusive.

Specifications.

Section 11. “Connections. In connecting concrete already set with new concrete, the surface shall be cleaned and roughened and mopped with a mortar composed of one part cement and one part sand to cement the parts together.”

Section 12 provides for expansion joints.

Section 13. “All spandrel and retaining walls shall be built in continuous work between expansion joints, from foundations to top of cornice.”

Section 14. The concrete work on skew arches is required to be continuous.

Section 15 provides for wrought iron pipes to be built in the arch to carry away any water that may seep through the pavement and fill.

Section 17. “Casing. The piers, abutments, retaining walls and spandrel walls shall be built in timber forms. These forms shall be substantial and unyielding, of the proper dimensions for the work intended, and all parts in contact with exposed faces of concrete shall be finished to a perfectly smooth surface by plastering with a mixture of plaster of paris and lime, so that no mark or imperfection shall be left on the work.”

Section 18. “Concrete Facing. The concrete shall be deposited in smooth molds as specified in paragraph 17. A mortar facing three-quarters of an inch thick composed of one part Portland cement and two parts sand shall be deposited directly against the molds, which shall be kept well oiled in advance of the work in progress. The concrete backing shall be deposited in the same layer and be well rammed in place, at the same time leaving no definite plane or surface of demarkation between the facing and concrete backing. The faces of the arches at intrados and extrados shall be rounded off leaving no sharp corners.”

Section 19. “Centering. The contractor shall build an unyielding falsework of centering. The lagging shall be dressed to a uniform thickness so that when laid it shall present a smooth surface, or it shall be made smooth by plastering or other efficient means.”

Section 24. “Hand Railings and Parapets. The hand railing or parapets shall be of concrete of the forms and dimensions shown on plans and shall be brought true to line, and be firmly fastened in the position shown.”

Section 32. “Lines and Grades. Lines and grades will be established by the engineer and no work shall be commenced until these are given.”

Section 33. “Extra Work. The contractor must be prepared to do any extra work that may be ordered in writing by the engineer, and for this he will be paid at current contract rates for work of similar character, or if the extra work should be of a class for which no rate is fixed by current contracts, the actual reasonable cost to the contractor, as determined by the engineer, plus fifteen per cent. of said cost. The contractor shall have no claim for compensation for extra work unless the same is ordered in writing by the engineer.”

Section 34. “Inspection. All material furnished by the contractor shall be subject to the inspection and approval of the engineer, and the engineer shall have the power to condemn all work which in his opinion is not done in accordance with this contract and specifications.”

Section 35. “Modifications. Any modifications of the prescribed lines, grades, positions, methods or materials of construction which in the judgment of the engineer may be expedient, shall be made by the contractor.”

Section 36. “Interpretation of Plans and Specifications. The decision of the engineer shall control as to the interpretation of the plans and specifications during the execution of the work thereunder, but this shall not deprive the contractor of his lawful rights to redress after the completion of the work for any improper orders or decisions which may have been received during the execution of the work.”

Section 39. “Delays. No allowance or charge shall be made to or by the contractor for any hindrance or delay from any cause, in the progress of his work, but in any such case the engineer in charge may give such extension of time stipulated herein for the completion of the work as he may deem proper, provided the contractor gives immediate notice in writing to the engineer in charge of such hindrance or delay and the cause of it.”

Contract Between Milwaukee County and Its Engineer.

The following are the portions of this contract that are deemed material on this...