S. Sur. Co. v. Metro. Sewerage Comm'n

• Decision Date: 22 June 1925
• Parties: SOUTHERN SURETY CO. v. METROPOLITAN SEWERAGE COMMISSION ET AL.
• Court: Wisconsin Supreme Court

187 Wis. 206

204 N.W. 476

SOUTHERN SURETY CO.

v.METROPOLITAN SEWERAGE COMMISSION ET AL.

Supreme Court of Wisconsin.

June 22, 1925.

On rehearing as to claim of Gerrit T. Thorne. Judgment of trial court reversed, with directions.

For former opinion, see 201 N. W. 980.

On a motion for rehearing in this action on appeal, the court granted a rehearing on the claim of Gerrit T. Thorne, and submitted a question to the attorneys for the respective parties for briefs, as follows: “Should a credit of $2,719.20 have been allowed the Mid-West Construction Company?”

The court has reconsidered this proposition. The Mid-West Construction Company and Gerrit T. Thorne entered into a contract as follows:

“This agreement entered into this 24th day of August, 1922, between the Mid-West Construction Company of Milwaukee, Wis., party of the first part, and Gerrit T. Thorne of 6422 Yale avenue, Chicago, Ill., party of the second part:

Whereas, the party of the first part has entered into a contract to put in 1,961.77'-24? C. I. pipe siphon sewer and 5,887.71 feet of 4' concrete sewer on the Watertown plank road in Milwaukee county, and whereas the party of the second part has machinery adapted to doing the excavating and backfilling for said sewers, to wit: An O Austin trenching machine special that cuts 84? wide, which he is to place on said job, also an Orton & Steinbrenner caterpillar clamshell crane with clamshell bucket:

Now, it is hereby agreed by the party of the first part that it will pay party of the second part the agreed sum of twenty-three thousand dollars ($23,000.00) for digging and backfilling the ditches for the cast-iron pipe, and concrete sewer, and doing such other work as hereinafter stated.

For the purpose of estimating payments to be made, the following rule shall be followed:

One dollar ($1.00) per foot for all 24? cast-iron pipe for which ditch is dug, and three dollars ($3.00) per lineal foot for all ditch dug for 48? pipe, and fifty cents ($.50) per lineal foot for all 48? pipe backfilled. Payments to be made every two weeks from time work is commenced, balance to be paid when work is completed.

The second party is to excavate a ditch about 42? wide and as deep as required for the cast-iron pipe, and sink down boom for bell holes when and where requested to do so, and for the 4-foot pipe he is to dig a ditch 84 inches wide and as deep as required; where square bottom is required second party will put on wheels so as to dig ditch as nearly flat as possible.

When, on account of having no place to put the dirt, it is necessary to take the dirt away with a truck, the second party is to hold the trenching machine until a truck can be placed under the conveyor by the first party, and then he will proceed to dig running said dirt into the truck to be taken away and dumped.

The second party is to load all surplus dirt in trucks with the clamshell, so it can be taken away by first party.

When, by reason of wetness or for any other reason the ditch cannot be dug with the ditching machine, or if it caves in, or if it has to be sheeted by first parties in order to maintain same, second party will use the clamshell bucket to take the dirt out of the ditch.

So far as any of the work that is to be done under this contract is concerned, it is to conform to requirements of the specifications of the Metropolitan Sewerage Commission.

It is understood and agreed that if rock is encountered it is to be removed by first party, also all obstructions encountered such as concrete roads, brick pavements, or other material that cannot be excavated with a ditching machine or clamshell bucket is to be excavated by first party at its own expense. Wherever sewers, water pipes, gas pipes, railroads, or other obstructions are encountered, they are to be removed by first party, or jumped over by second party, and second party will excavate same with the clamshell bucket, but whatever hand work is necessary to be done shall be done by first party, and all work that can be done with the ditching machine and dragline crane shall be done with said machines. Said clamshell crane is to be used is every way possible to assist in the doing of the work to be done in building said sewer, including the removal of rock after blasting.

Second party agrees to put machinery on job as follows: In case he is not delayed by strikes or acts of God, over which he has no control, the machine which cuts 42 inches wide can be put on job before September 1st and the machine that cuts 84 inches wide can be placed on the job about September 10th, possibly before. In case first parties wish to commence 4-foot sewer before the big machine arrives, second party will dig the ditch with the 44-inch machine and cut down the sides of the ditch at his own expense, to meet the requirements up to 84 inches wide.

In case the work is delayed so that it freezes up before work is stopped, then in that event first party is to protect said work against frost or put it in a condition so second party's machinery can be operated.

The...