Bentley v. State

41 N.W. 338, 73 Wis. 416, 1889 Wisc. LEXIS 158

• Court: Wisconsin Supreme Court
• Decided: January 29, 1889
• Status: Published

Opinion

Cassoday, J.

The only question raised by the demurrer is whether the complaint above set forth states facts sufficient to constitute a cause of action upon contract. The contract was only to be let after the state, through its board of commissioners, had procured and adopted “suitable and proper plans, drawings, and specifications ” for the construction of the two wings of the capítol. Sec. 3, ch. 252, Laws of 1882. Such commissioners were expressly “ authorized to employ an architect or superintendent to superintend the work on said building as it progressed,” and for which he was to receive from the state such compensation as the commissioners should determine. Id. sec. 4. Such architect was thereby required, at the close of each month, to make out estimates in detail of all materials furnished and labor performed during said month, and duly certify the same to the board, who, after having examined, approved, and recorded the same, and after deducting fifteen per cent, of the total amount, to be retained until the completion of the contract, were to certify to the correctness thereof, when the same was to be paid by the state. Id. sec. 5. It appears that such commissioners were duly appointed and organized as a board, and employed such architect on or before May 25, 1882. It also appears that on or before that date the state, through such board and architect, did undertake to procure and adopRsuch “ suitable and proper plans, drawings, and specifications; ” and thereupon gave the requisite notice of receiving sealed proposals in the form of a blank contract furnished by them for the construction of such wings according to such plans and specifications; and that it became necessary twice to modify and alter such plans and specifications in order to secure any bids for such construction within the appropriation; and that the contract was awarded to the plaintiffs.

The contract is given above. It appears that it required all the materials to be furnished and all the work to be done according to such plans and specifications, and agreeably to such directions as might be given from time to time by such architect, and to his full and entire satisfaction; that it expressly authorized the state or its architect to vary from such plans and specifications, either by adding thereto or diminishing therefrom or otherwise, and the value of such alterations w-ere to be ascertained by him and to be added or deducted from the contract price named therein as the case might be; that such alterations and additions, as well as the work contained in the plans and specifications, were to be completed January 1, 1884; that any doubt or doubts as to the quality of materials being-used or the workmanship thereon, or as to estimating allow-anees for extra materials or work, or for the rectification of any failure from whatever cause arising, the same was to be judged of, determined, and adjusted solely by such architect, and such determination was to be final and conclusive. From the whole contract it seems to have been the dutj" of such architect, from time to time, as the work progressed, to inspect and approve or disapprove all material and workmanship as it went into the buildings; and the plaintiffs were bound by his determinations, and required to follow his directions. In other words, the contract gave such architect complete control and superintendence over such construction, and made him the sole judge of all materials furnished and labor performed. He was, moreover, thereby authorized and empowered to modify, change, and alter such plans and specifications as he might from time to time deem expedient; and the plaintiffs had no alternative, under the contract, except to follow his directions and conform to such modified, changed, and altered plans and specifications, but with the right to additional compensation for any and all extra materials and work required by-such modifications, changes, and alterations.

Under the pleadings, we must assume that the plaintiffs proceeded in good faith to perform their said contract according to such plans and specifications, and under the direction of the architect, and without any knowledge of any defects or inefficiency; that on November 8,1883, they had a very large portion of said two wings completed, and had placed therein a large quantity of cast-iron materials, furnished by a contractor selected by said architect, and which cast-iron materials had been approved and accepted by the architect on behalf of the state; that by reason and in consequence of defects in such plans and specifications, and without any fault or negligence of the plaintiffs, and on November 8, 1883, the south wing broke down and fell, destroying a very large amount of material and the fruits of a very large amount of labor bestowed thereon by the plaintiffs; that all the material and work so destroyed and lost had previously been approved and accepted by the architect, and been accepted by the board of commissioners, and paid for by the state upon the certificates of the architect; that thereupon other architects were employed by the state, and extensive amendments to such plans and specifications were thereupon made on behalf of the state, both for the north and south wings, whereby the same were greatly strengthened, and at large additional cost and expense; that such alterations were, then made and the buildings finished by the plaintiffs, at the special request of the state, in accordance with such new amended plans and specifications; that such work was done by the plaintiffs under the direction of said board and said architect; that in doing the same they were obliged to expend, and did expend, $22,038.20 for labor and materials in restoring so much of said south wing as had been finished and was destroyed by such fall; that the building was completed by the plaintiffs and accepted by the state, November 29, 1884; that the state has paid for the same, except the amount last stated; that the architect unreasonably and without just cause refused to certify the work done and materials furnished in rectifying such failures and restoring such south wing.

Under such a contract, and upon such facts, it is strenuously urged upon the part of the state that the plaintiffs were bound to furnish all the materials and perforin the necessary work to restore the south wing, according to such new or modified and altered plans and specifications, to the point and in the condition where it was when it fell, at their own' cost and expense. In other words, the contention is that the plaintiffs assumed the risk of the sufficiency and efficiency of the plans and specifications, and the materials and workmanship thus exacted, approved, accepted, and paid for by the state; and hence must suffer and make good the loss occasioned by such defects. Under the contract, it is very manifest that, had the plaintiffs departed, from such plans and specifications and refused to follow the directions of the architect, there could have been no recovery for the building of the south wing, even had they in the first instance built it as they were finally directed by the architect to do. On the contrary, they could only recover by furnishing materials and doing the work according to such plans, specifications, and directions, as they allege they did. The fall was not the result of inevitable accident, as in several of the cases cited by counsel. According to the allegations of the complaint, it was in consequence of inefficient and defective plans and specifications therein mentioned. According to such allegations, we must infer that there was in such agency of the state a lack of learning, experience, skill, and judgment to draw adequate and efficient plans and specifications for a building of that magnitude. But, as observed, the state, through its own chosen agency, undertook to furnish, for the guidance of the plaintiffs, “ suitable and proper plans, drawings, and specifications for the construction ” of such buildings, and then bound the plaintiffs to build according to them unless otherwise directed by its architect. Under the allegations of the complaint, we must assume that such inefficiency and defects were not patent to an ordinary mechanic, but were, as to the plaintiffs, latent. It is nevertheless contended that, if it -were possible by means of temporary supports to have completed the buildings according to such plans and specifications, then the plaintiffs were bound to so complete them, unless sooner stopped through the agency of the state, even though they would have been worthless when so completed; and that since they were not so stopped, and the buildings were not so completed according to such original plans and specifications, the plaintiffs were bound to suffer the loss and make the same good by restoration. In other words that, under the act authorizing the structures and the contract, the state was not bound to make good and was not responsible for the inefficiency and defects of what it thus undertook through its agency to furnish; but that the plaintiffs were bound to make good what they thus undertook to furnish and perform, notwithstanding the failure of such conditions precedent on the part of the state.

The case most'relied upon in support of such contention is Thorn v. Mayor, L. R. 1 App. Cas. 120, affirming S. C. 44 L. J. Exch. 62. The facts in that case were to the effect, that the city of London desired to remove an existing bridge over the Thames at Blackfriars, and eréct a new one in its place. Accordingly its engineer prepared plans of such intended new bridge, and specifications of the works to be executed. The specifications stated, in effect, that the accuracy of the drawings of the existing bridge was not guarantied; that the city should not be liable for any extra •work in removing more than indicated in the drawings; that the contractors were to take out their own quantities, and satisfy themselves as to the nature of the ground through which the foundations were to be carried; that no surveyor was authorized to act for the city, and that no information given was guarantied; that piers Avere to be put in by means of wrought-iron caissons, as shown on the drawings; that the contractors were to assume all risks and responsibility in the sinking of such caissons, and to employ their own divers or other efficient means for removing and overcoming any obstacles or difficulties that might arise in the execution of the work; that the quality of the concrete was put under the control and direction of the engineer; that extra or varied work Avas to be certified, accounted, and paid for at prices named. Thorn, having taken the contract, entered upon the works according to such plans and specifications. After a while it transpired that such caissons were not sufficiently strong to resist the tide-waters, and accordingly it became necessary to alter the plans for shutting out the water while putting in the piers. This occasioned the loss of material and work, and necessitated extra material and work, and a considerable delay. The ordinary method at the time of shutting out such water was by means of coffer-dams. The city voluntarily paid the contract price, and also voluntarily paid for the cost of the extra work rendered necessary by such alteration of the plans, but refused to pay for the contractor’s loss of time and labor occasioned by the attempt to execute the original plans, and the action was brought to recover what the city thus refused to pay. The question presented was whether there was any implied warranty on the part of the city that such caissons would prove efficient to shut off the water while building the piers. Each of the two courts cited above held that there was no such warranty, and hence that the city was not liable.

The value of such decisions as authority, however, is somewhat impaired by reason of the uncertainty as to the precise grounds upon which they were based. This grows out of the fact, so common among English decisions, especially of the present day, of rendering numerous opinions in the same case. Thus, in that case, there were five different opinions rendered in the Exchequer Chamber, and four in the House of Lords. Each of these opinions puts such decision upon grounds differing more or less from some if not all the others. The conclusions of each court, therefore, are to be found in the general average. The prevailing opinions in each of those courts seem to go on the theory that the contract was for the building of the bridge on piers; and that although the contract referred to the plans, etc., in which the caissons were specifically described, yet that the caissons were merely an unusual mode of doing the work, which was likened to the scaffolding in building a house.; and that in no event was there any express or implied warranty as to the efficiency of such caissons; that in the absence of any such warranty, and upon the facts stated, the plaintiff could not recover in that form of action, even if he could in some other form. Some of the opinions seem to go upon the theory that the contractor assumed the risk of the efficiency of the plans and specifications, while others seem to go upon the theory that, when the caissons proved themselves inefficient, the plaintiff was at liberty to decline further work under the contract, but that as he continued the work in the absence of any such warranty he was without remedy, — ■ especially in that form of action. All the opinions seem to agree that the case, as brought and presented, necessarily turned upon the presence or absence of such a warranty or undertaking on the part of the city, which was found not to exist.

The facts of that case distinguish it from the one at bar in several particulars. In that case the caissons so specified were not included in the thing contracted for, but were only referred to in the specifications as a means to be employed in the construction of the piers. Here the defects and inefficiency were in parts of the structure contracted for. In that case the city’s engineer only had control and direction as to a small portion of the work, in which the caissons were not included, but the construction was almost wholly under the control and supervision of the contractor and his engineer and employees. Here, as indicated, the state’s architect was to inspect, approve, and accept the materials •and workmanship as they went into the building, and did ■so accordingly, with full power to modify and alter plans .and specifications. In that case the defective parts were mover accepted by the city. Here they were inspected, accepted, approved, and paid for by the state. In that case the agency of the city, as to the defective parts, terminated with the drawing of the plans and specifications. Here the agency of the state continued, with the absolute right of control and supervision, during the entire execution of the works. In that case the contract expressly disclaimed any guaranty, risk, or responsibility as to several particulars, including the sinking of such caissons, and in removing and overcoming any obstacles or difficulties arising in the execution of the works. Here there is no such disclaimer on the part of the state, but a general assumption of the right to determine all questions relating to the material and workmanship. In that case the stipulation respecting compensation for extras seems to have been more limited than here. The cases may fairly be regarded as distinguishable in their facts. Certainly we are unwilling to apply the rules there announced by some members of the court to the facts here admitted by the demurrer. According to such facts, the state undertook to furnish suitable plans and specifications, and required the plaintiffs to conform thereto, and assumed control and supervision of the execution thereof, and thereby took the risk of their efficiency. What was thus done, or omitted to be done, by the architect, must be deemed to have been done or omitted by the state. Moreover, we must hold, notwithstanding the English case cited, that the language of the contract is such as to fairly imply an undertaking on the part of the state that such architect had sufficient learning, experience, skill, and judgment to properly perform the work thus required of him, and that such plans, drawings, and specifications were suitable and efficient for the purpose designed. There seems to be no lack of able adjudications in support of such conclusions. Clark v. Pope, 70 Ill. 128; Daegling v. Gilmore, 49 Ill. 248; Schwartz v. Saunders, 46 Ill. 18; Seymour v. Long Dock Co. 20 N. J. Eq. 396; Sinnott v. Mullin, 82 Pa. St. 333; Smith v. B., C. & M. R. Co. 36 N. H. 459; Grand Rapids & B. C. R. Co. v. Van Dusen, 29 Mich. 431; Burke v. Dunbar, 128 Mass. 499; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108. The case is not unlike in principle to a class of decisions frequently made by this and other courts, and recently sanctioned bj' the House of Lords, to the effect that where goods or machinery are ordered for particular use, to the knowledge of the manufacturer or vendor, there is an implied undertaking or warranty on his part that they will be fit for such use in the ordinary manner, and that in case of failure by reason of latent defects not discoverable by ordinary diligence upon inspection, such manufacturer or vendor is liable. Drummond v. Van Ingen, L. R. 12 App. Cas. 284.

By the Court.— The demurrer to the complaint is overruled, with leave to answer within twenty days.