Tomlinson v. Ashland Cnty.

• Decision Date: 25 June 1919
• Citation: 170 Wis. 58,173 N.W. 300
• Parties: TOMLINSON ET AL. v. ASHLAND COUNTY.
• Court: Wisconsin Supreme Court

170 Wis. 58

173 N.W. 300

TOMLINSON ET AL.

v.ASHLAND COUNTY.^a1

Supreme Court of Wisconsin.

June 25, 1919.

Appeal from Circuit Court, Ashland County; G. N. Risjord, Judge.

Action by Frank Tomlinson and another against Ashland County. Judgment for defendant, and plaintiffs appeal. Reversed and remanded, with direction.

On February 10, 1914, the county board of defendant by due resolution appointed a building committee and authorized the issue of bonds for the erection of a courthouse in the city of Ashland. February 21 a contract was duly made with architects Buemming, of Milwaukee, Wis., and Wildhagen, of Ashland, by which, among other things, the said architects were required “to furnish complete plans and specifications * * * in such shape that the owner may advertise for bids thereon for the erection of said courthouse.”

Such prepared plans and specifications were submitted to bidders under a general advertisement or notice which contained the following provision:

“All bids must be in strict accordance with the plans and specifications prepared by H. W. Buemming and Henry Wildhagen.”

The building was to be erected upon a square block, the surface of which sloped from the south to the north with a difference in level of 8 feet. The exact position upon said lot had not been determined upon, however, at the time the bids were received.

The plaintiffs were residents of Ashland and familiar with the location of the block on which the building was proposed to be erected. Prior to their submitting their bid for the doing of certain of the work, plaintiffs called the attention of the Ashland architect to the fact that the plans as prepared, particularly so far as related to the height of certain columns or piers in the same, could not be adjusted in accordance therewith to the actual slope of the ground, for if all the columns or piers were to be of the length as marked on the plans they could not all rest upon the surface. Thereupon a change was made in the plans, indicating that certain of the columns or piers were to be of greater length than originally indicated, but no reference was made in such changed plan or notice of the difference in the elevation of the surface soil, or that any filling of material in or around the building would be thereby rendered necessary.

Plaintiffs and other bidders discussed with the architects prior to submitting bids the question of whether or not they would be required, under the mason work, to haul in any ground or soil for the purpose of making any filling either within the walls of the building or outside them, and after such discussion, and being informed by the architect that in his judgment the county would furnish the material for the filling, at least for the outside, they made no provision in their bid for any expense for bringing material from the outside of the lot to raise the surface of the ground above its then level.

Plaintiffs submitted their bid and attached to the bottom thereof was written as follows:

“The above bid is based on the understanding that the excavated earth from the building will be sufficient to do all filling.”

This note was brought to the attention of at least one of the members of the building committee of the defendant and to the attention of the architect. It was detached, however, either at the time the bid was presented or just prior to the time when the contract was let to the plaintiffs.

A contract was made with the plaintiffs on June 9, 1914, the material parts of which are as follows:

“Article I. The contractors shall and will provide all the materials and perform all the work for the entire structural steel and iron work, fireproofing, cut stone work, mason work, lathing and plastering, ornamental iron work, carpenter work, galvanized iron, tin, copper and roofing work, and painting and glazing of and for a courthouse building to be built at Ashland, Wis., as specified on pages 5 to 29, inclusive, of specifications, and including also work described on sheet A, herewith attached and made a part of this contract, all as shown on the drawings and described in the specifications prepared by H. W. Buemming, Henry Wildhagen. associated architects, which drawings and specifications are identified by the signatures of the parties hereto, and become hereby a part of this contract.

Art. II. It is understood and agreed by and between the parties that the work included in this contract is to be done under the direction of the said architect, and that his decision as to the true construction and meaning of the drawings and specifications shall be final. * * *

Art. III. No alterations shall be made in work except upon written order of the owner and the architect; the amount to be paid by the owner or allowed by the contractors by virtue of such alterations to be stated in said order. Should the owner and contractors not agree as to amount to be paid or allowed, the work shall go on under the order required above, and in case of failure to agree, the determination of said amount shall be referred to arbitration, as provided for in article XII of this contract. * * *

Art. VIII. The owner agrees to provide all labor and materials essential to the conduct of this work not included in this contract in such manner as not to delay its progress, and in the event of failure so to do, thereby causing loss to the contractors, agrees that it will reimburse the contractors for such loss. * * * Should the owner and contractors fail to agree as to the amount of loss comprehended in this article, the determination of the amount shall be referred to arbitration as provided in article XII of this contract. * * * The final payment shall be made within 30 days after the completion and acceptance of the work included in this contract, and all payments shall be due when certificates for the same are issued.”

The specifications referred to in and made a part of the contract contained the following provisions:

“ Grading.--The entire lot, which is 300x300 feet in size, is to be graded so as to bring the top grade of same one foot above the sidewalk grade of Second street, within a radius of 20 feet all around the outside walls of building. All soil from the excavations is to be left on the premises and leveled out as directed.

The filling around the building is to be completed before November 1, 1914.

Excavations.--The entire top soil for the entire area of ground floor shall be plowed and scraped off down to solid clay. The entire area of ground floor is then to be filled in with clay, sand or cinders, to the proper level, well tamped and rolled down with a steam roller to a true and level surface, ready for the concrete foundation of ground floor.

General Conditions.--The contractor for this work will be subject to the ‘General Conditions' forming the preface of this specification, in so far as the same are applicable to this branch of the work. * * * He will be required to do all work belonging to his branch, whether mentioned in his respective specification or elsewhere. The county of Ashland will not be liable for any extra work unless the same shall first be duly ordered in writing by the courthouse building committee at an agreed price. * * * Any work or materials not directly or indirectly noted in the specification or drawings, but necessary for the proper carrying out of the obvious intentions thereof, are to be understood as implied, and must be provided by the contractor.

Alterations.--The courthouse building committee reserves the right to make any change in the plans and specifications which it may deem necessary or desirable, and the several contractors shall furnish the additional material and do the extra work necessitated by such changes at fair and reasonable prices, said price to be agreed upon by the courthouse building committee and the said contractors respectively before the work is commenced. The county of Ashland shall not be liable for any extra work, unless the same shall be duly ordered in writing by the said committee. If the changes herein mentioned shall diminish the amount of work to be performed or materials to be furnished, the amount of the same at a fair and reasonable value shall be deducted from the contract price.

On or before the 5th day of each calendar month each contractor must deliver to said courthouse building committee a written statement of the amount of his claims, if any, for such additional or extra work and material furnished during the previous month. The nondelivery of such bill or account at the stated time will be considered as an abandonment of any claims for the value of such work and as exonerating the county of Ashland from all liability relative thereto.

Architects and their Duties.--H. W. Buemming, Milwaukee, Wis., and Henry Wildhagen, Ashland, Wis., associated architects, are the architects and superintendents of this work for and in behalf of the county of Ashland. Their duties consist in giving the true interpretation and meaning of the plans and specification, at the same time taking particular care that all work and materials shall be, in all respects, according to the said plans and specification. They have no authority to make any changes in the said plans and specification, nor to order any additional or extra work, that power being reserved to the courthouse building committee alone. (See Alterations.) They shall give any and all certificates that the contractor may become entitled to from time to time, and shall settle in conjunction with the courthouse building committee all the deductions from or additions to the contract price which may grow out of any changes or alterations in the work. They shall also determine, in conjunction with the courthouse building committee, the damages which may accrue from any cause, and shall decide upon the fitness of all materials used and work done. The courthouse building committee and architects' opinions, certificates, reports and...