Wussow v. State
| Decision Date | 28 April 1936 |
| Citation | 222 Wis. 118,267 N.W. 56 |
| Parties | WUSSOW v. STATE. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
This is an original action, commenced by the plaintiff, C. F. Wussow, against the state of Wisconsin, pursuant to chapter 285 of the Statutes, to recover the amount of a claim asserted to be due him. Two causes of action are attempted to be stated in the complaint. The state demurred to the complaint on the ground that upon its face it does not state facts sufficient to constitute a cause of action.Sell & Mathiowetz, of Milwaukee (W. H. Churchill, of Milwaukee, of counsel), for plaintiff.
James E. Finnegan, Atty. Gen., and Warren H. Resh, and J. R. Wedlake, Asst. Attys. Gen., for the State.
Since the sole question to be determined is whether the complaint states a cause of action, it will be necessary to recite the facts alleged.
The facts alleged in the first cause of action may be summarized as follows: The plaintiff is, and was at all of the times mentioned in the complaint, a general contractor, duly qualified to perform highway construction work under the rules and regulations of the state highway commission and the statutes of this state. Prior to September 21, 1933, the state of Wisconsin, through its highway commission, entered upon the construction of a proposed highway, designated by it as the Stoughton-Madison-Portage road project, and to be constructed as a federal highway pursuant to the provisions of chapter 84, 1933 Stats. The commission caused the site of said project to be surveyed and maps, drawings, plans, and specifications to be prepared. The quantities and nature of the materials to be removed and the location thereof were approximately estimated. On or about September 21, 1933, the commission advertised for competitive bids for the construction of said project. The published notice to prospective bidders provided that the bids and also the contract to be let, were subject to and were to be based upon the plans and specifications prepared by the commission, and were subject to and consisted of the following items, plans, and specifications:
“(a) Estimate of Major Items: Clearing 5.86 acres; grubbing 5.86 acres; excavation, earth, borrow, marsh, channel 160,000 cubic yards; loose rock 700 cubic yards; solid rock 300 cubic yards.”
(b) Plans on file for inspection in the office of Division No. 1, State Office Building, Madison, Wis.
“(c) Specifications: The standard specifications for road and bridge construction of the State Highway Commission of Wisconsin marked ‘approved and adopted January, 1932’ and subsequent revisions and special provisions, shall govern the work.”
The plaintiff carefully examined the site of said project and from such examination it did not appear that the quantities as stated in the plans and specifications were incorrect, nor was there anything at or upon the site to indicate or suggest that the quantities as stated in said plans and specifications were erroneous. The plaintiff relied upon the information contained in the maps, drawings, plans, and specifications in submitting his bid or proposal upon the required proposal form, copy of which is annexed to the complaint. The plaintiff was awarded the contract. The plaintiff entered into the contract relying upon the plans and specifications as prepared by the commission and the representations made therein, as to quantities of work specified. The estimates and plans submitted by the commission were erroneous as to the amount of work to be done upon said project, particularly so as to the estimated quantities of several of the respective items required to be excavated and removed. The work actually done was correctly stated in the final estimate of the commission, copy of which is annexed to the complaint. The plaintiff fully completed his contract, and the work was accepted by the highway commission on August 2, 1934, and by the United States Bureau of Public Roads on October 18, 1934. By reason of the mistakes and miscalculations of the highway commission, and its employees, in making the estimates, it was necessary for the plaintiff to perform a great deal of extra work which included difficult grading, excavating large quantities of loose and solid rock in excess of the estimates, which increased quantities are fully set out in the final estimate of the commission.
The amount of loose dirt that was moved was less than that specified. The amount of loose rock was approximately 6.6914 times more than that specified and the amount of solid rock was approximately 31.6033 times more than that specified. Because such loose and solid rock so greatly exceeded the amounts estimated and was mixed with the loose dirt, which was less than the amount estimated, the work was entirely different than that specified, and the unit prices mentioned in plaintiff's proposaland contract were way below the prices that would be set for said work under the conditions as they existed. The amount of borrow that was moved was approximately 4.7271 times greater than that estimated, and because such excessive loose and solid rock was mixed with borrow the work was entirely different from that specified, and the unit prices set out in the contract were way below the prices that would be set for said work under the conditions as they existed. The amount allowed the plaintiff by the commission is inadequate and not the true amount due the plaintiff. Exhibit E, attached to the complaint, is a compilation of what the plaintiff asserts should be allowed him as additional compensation for the work performed. The plaintiff asserts that the state is indebted to him in the sum of $31,158 in addition to the sum of $54,011.99 paid him or allowed him by the commission. The plaintiff's claim was presented to the Legislature in 1935 but allowance thereof was refused.
The facts alleged in the second cause of action are as follows: All of the facts stated in the first cause of action are reiterated and incorporated into the second cause of action by reference. The amount of the plaintiff's bid for the completion of said contract was $38,869.34. The total amount allowed the plaintiff by the commission upon final estimate was $54,011.99. One of the special provisions of the contract provided that in the event the total cost of the work calculated from the original proposal quantities, and the contract unit prices, amounted to over 25 per cent. of such original bid, then and in that case, additional compensation in a sum to be thereafter determined should be paid. As fully appears from the original contract and the final estimate, such total increase in the cost of the work was approximately 39 per cent. During the period of performance of the contract, and on or about July 23, 1934, the cost of said work, required to be performed according to the terms of the contract, having exceeded the original contract amount by more than 25 per cent., the plaintiff duly demanded of the commission a supplemental agreement to cover said additional cost of the work. Thereafter the plaintiff and the commission agreed that the plaintiff might proceed with and complete the work without prejudice to his right to demand a supplemental agreement. Upon completion of the work the plaintiff demanded additional compensation pursuant to his asserted right to a supplemental agreement, based upon a revision of a number of the unit prices specified in his proposal and contract. The commission rejected his claim and refused to allow him more than the total sum of $54,011.99 hereinbefore mentioned. The plaintiff demands judgment for the sum of $31,158 in addition to the amount allowed by the commission.
Exhibit A, annexed to the complaint, is a copy of the plaintiff's proposal. It contained the following paragraphs:
“The Bidder declares that, he has carefully examined the site of, and the proposal, plans, specification and contract forms for the work contemplated, and it is assumed that the Bidder has investigated and is satisfied as to the conditions to be encountered, as to the character, quality, and quantities of work to be performed and materials to be furnished, and as to the requirements of the specifications, special provisions and contract. It is mutually agreed that submission of a proposal shall be considered conclusive evidence that the bidder has made such examination.
The bidder declares that he understands that the estimate of quantities in the attached schedule is approximate only and that the attached quantities may be greater or less in accordance with the specifications.
The Bidder agrees to perform the said work, for and in consideration of the payment of the amount becoming due on account of work performed, according to the unit prices bid in the following schedule, and to accept such amounts in full payment for said work.”
Plaintiff's proposal also contained a “schedule of prices.” So much of the plaintiff'sproposal as will illustrate the manner of bidding and the “unit prices” for the different kinds of work is as follows:
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¦“Approximate¦Items with Unit bid price written in ¦Unit bid ¦Total ¦
¦quantities ¦words ¦price (in ¦Amount of¦
¦ ¦ ¦figures)...To continue reading
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...respondents cite the general rule that qualifying phrases are to be referred to the next preceding antecedent. Wussow v. State (1936), 222 Wis. 118, 267 N.W. 56. The construction urged by respondents would have the effect of denying American Oil the right to indemnification for defects in t......
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...declaration that the variation would not exceed 25% of the quantities estimated and that this constituted a warranty. In Wussow v. State, 222 Wis. 118, 267 N.W. 56, 60, the question of warranty and representation was considered, and the court in denying recovery "No contractor qualified to ......
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