Pung v. Derse

162 N.W. 177, 165 Wis. 342, 1917 Wisc. LEXIS 92

• Court: Wisconsin Supreme Court
• Decided: April 4, 1917
• Status: Published

Opinion

Winslow, C. J.

It is beyond dispute that the original contract with Holstein for the erection of the school building was valid. This being so, it follows that the judgment rendered here was clearly wrong because (1) the clause in the contract providing that changes might be made by the board in the materials, method of construction, etc., of the building was a usual and valid provision (Mueller v. Eau Claire Co. 108 Wis. 304, 84 N. W. 430); (2) such changes, when they are made in good faith and do not substantially change the character of the building or unreasonably increase its cost, may be legally made without taking the steps required to be taken before letting the original contract (Mueller v. Eau Claire Co., supra); (3) the change made here is admitted to have been made in good faith, and it neither increased the cost of the building nor in anywise changed its character or efficiency.

We have preferred to dispose of the case on the merits, but we are not to be understood as deciding or intimating that a taxpayer’s action can be maintained under such circumstances as are presented here, where neither the taxpayer nor the corporation suffers any loss, and especially when the action was not commenced until the work is nearly finis., ed. That is a question which admits of-gravest doubt. Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851; Ebert v. Langlade Co. 107 Wis. 569, 83 N. W. 942; Warden v. Hart, 162 Wis. 495, 156 N. W. 466.

By the Gouri. — Judgment reversed, with costs, and action remanded with directions to dismiss the same on the merits. Appellants to tax but one attorney’s fee in this court, same to be divided equally.