White Const. Co. v. City of Beloit
| Decision Date | 10 October 1922 |
| Citation | 178 Wis. 335,190 N.W. 195 |
| Parties | WHITE CONST. CO. v. CITY OF BELOIT. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Green County; George Grimm, Judge.
Action by the White Construction Company against the City of Beloit. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.
This action was begun to recover from the defendant city damages alleged to have been caused by reason of its failure to give promptly to the plaintiff the use of its streets, in order to permit the plaintiff to carry out its contract for paving, and that by reason of the delay, due to the failure of the city, the plaintiff sustained the damages complained of. From the order sustaining the demurrer, the plaintiff appeals.
Eschweiler, J., dissenting.Jeffris, Mouat, Oestreich, Avery & Wood, of Janesville, for appellant.
R. A. Edgar, City Atty., of Beloit (Olin, Butler, Thomas, Stebbins & Stroud, of Madison, of counsel), for respondent.
The only question raised upon this appeal is whether the execution of the contract between the plaintiff and defendant was sufficient, notwithstanding the fact that the comptroller of the defendant city failed to certify that funds were available and failed to sign the contract. This involves a construction of sections 925--45 and 925--93, Wis. Stats. 1919. Section 925--93 provides:
“All contracts shall be signed by the mayor and clerk unless otherwise provided by resolution or ordinance: Provided, that no contract shall be executed on the part of the city until the comptroller shall have countersigned the same and made an indorsement thereon showing that sufficient funds are in the treasury to meet the expense thereof or that provision has been made to pay the liability that will accrue thereunder.”
Section 925--45, relating to the duties of the comptroller, provides:
“* * * He shall countersign all contracts made with the city if the necessary funds shall have been provided to pay the liability that may be incurred thereunder, and no such contract shall be valid until so countersigned. * * *”
In the execution of the contract upon which suit is brought, there was no compliance with either of these sections. The comptroller did not sign the contract, and he did not execute the necessary certificate. However, the parties entered upon the performance of the contract, and it was fully performed. The paving was fully constructed, and the full amount of the contract price was paid by the defendant to the plaintiff. This action, as has been stated, is brought to recover damages arising by reason of the defendant's breach of duty in respect to surrendering its streets, so that the work might be properly and expeditiously carried on.
It is first urged that the suit is not upon the contract. We think it is clearly evident that it is. If there is no valid contract between the parties, then the defendant city owed no duty to the plaintiff in the respects complained of.
[1] It is next urged that, the contract having been fully performed, the parties were bound thereby as fully and completely as if the contract had been signed and the certificates executed by the comptroller. While the principle of law upon which this argument is based may be sound as applied to contracts between private parties, it is not applicable to those contracts of a municipality which the statute provides shall be executed in a specified manner and form. Cawker v. Central B. P. Co., 140 Wis. 25, 121 N. W. 888.
[2][3] The complaint alleges that provision had been made for sufficient funds to pay the liability which would be incurred under the contract. It is claimed that under the circumstances the required act of the comptroller in executing the certificate required by section 925--93 was a mere ministerial act. and that his omission to sign the contract as required by the provisions of section 925--45 was a mere irregularity; it being the intent of both parts thereto that the contract should be fully and validly executed. We do not think that the signature of the comptroller and the making of the certificate are merely ministerial acts. The contrary is not established, even if it be true that the...
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...if it had, our precedent makes clear that internal rules cannot trump explicit statutory restrictions. See White Constr. Co. v. City of Beloit, 178 Wis. 335, 338, 190 N.W. 195 (1922) (explaining that governmental bodies "may enter into a valid contract in the way specified by law and not ot......
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