Bradley v. Wisconsin Drainage Co.

195 N.W. 705, 181 Wis. 601, 1923 Wisc. LEXIS 242

• Court: Wisconsin Supreme Court
• Decided: November 13, 1923
• Status: Published

Opinions

Crownhart, J.

The cause under consideration relates to the rights of plaintiff under a “drainage” contract entered into by the town board of supervisors of the town of Hampden, in Columbia county, and the defendant Wisconsin Drainage Company, whereby the defendant was to construct a certain drainage ditch through the lands of the plaintiff and others pursuant to the provisions of ch. 54, Stats. 1917. Plans and specifications were provided by the engineer of the board, and the contract provided that such ditch should be constructed in accordance with such plans and specifications. The town board was given special powers under the law and acted as a special agency for the owners of the property affected, although not constituted a separate corporate body. The board’s duties as such agency were fixed by statute and were independent of their duties as supervisors of the town as such. The board could only act if it should find that the proposed work would promote the public health or the public welfare and that the benefits to the landowners would exceed the damages and costs of construction. Sec. 1362, Stats. 1917. The law further provided that as soon as the contract was let for the construction of the drain, and assessments for such construction made against the several tracts of lands affected should fall due, the same should be paid to the town treasurer, who should hold the same as a separate fund to the credit of the drainage, and pay the same on the order of the supervisors to defray the legitimate expenses of the drainage, and any excess over the cost of constructing the drain, so paid into the hands of the town treasurer, should be held by the treasurer as a separate fund for the maintenance of the drain. Sec. 1364, Stats. 1917.

The law was very brief and general in character. The allegations in the complaint are that a contract was let for the construction of the ditch; “that said contractor failed and refused to construct said ditch according to the plans and specifications therefor and neglected to dig the same tO' grade and failed and neglected to slope the sides as provided therein, and failed and neglected to dig the top and bottom of said ditch to the width specified by said plans and specifications ; that large quantities of rock were left in such ditch and that it was also defective in other particulars. . . . Said town board and said contractor, through fraud and collusion, in violation of and disregarding the rights of plaintiff and other property owners interested in said ditch, in form executed a settlement, releasing the said contractor from the performance of said contract upon leaving the sum of $1,500 of the contract price for such work in the hands of the town board.”

There are other allegations to the effect that such ditch was worthless and failed to perform its function, and that by reason thereof another assessment was made against the lands of the plaintiff by the properly constituted authorities, in the sum of $1,410.86, which became a lien upon plaintiff’s land and collectible, in order that the ditch might be completed in accordance with the terms of the original contract.

Does the complaint, liberally construed, state a cause of action? The defendant company, by its contract with the town board, owed a duty to- construct the ditch in accordance with the terms of the contract. That was a contractual duty to the board, but under the contract it was for the benefit of the plaintiff and other property owners affected by the drainage. The town board owed the property owners affected the duty of requiring the contract to be fulfilled according to its terms. But the defendant likewise owed the property owners under the contract the duty of performing its contract according to its terms. Under the allegations of the complaint the defendant fraudulently colluded with the town board to violate these obligations to the plaintiff, whereby he was damaged. While we find no exact precedent in the books, the complaint may be sustained under the reasoning of the opinion in Crowley v. Milwaukee, 166 Wis. 156, 164 N. W. 833. The tort of the defendant is also analogous to the liability which springs from interfering with the relation of master and servant or principal and agent, to the damage of the master or principal.

It is therefore held that if the allegations in the complaint be proven, then the plaintiff is entitled to recover, in the absence of excuse of justification, the additional sum which he was assessed and compelled to pay in order that the drainage might be completed according to the terms of the original contract. The court has given consideration to all of the objections urged by defendant, but deems further discussion unnecessary.

By the Court. — The order of the circuit court is affirmed.