
    Hanrahan and another, Respondents, vs. City of Janesville, Appellant.
    
      February 21
    
    March 14, 1911.
    
    
      Municipal corporations: Contracts for sewers: Assignment: Who may maintain action: Authority of officers: Flans and specifications: What bidders may rely upon: Computation of amount of worlc: Right to extra compensation.
    
    1. Where, with the consent of the city, contracts for the construction of sewers were sublet and the subcontractors fully performed the work thereunder, an assignment of the contracts by the original contractor to the subcontractors was valid and entitled the assignees to maintain an action for extra work done under the contracts, even though the city did not know of or consent to such assignment.
    2. In dealing with a public corporation a contractor is bound to know the extent of the authority of its officers as well as of the corporation itself.
    3. In bidding upon sewer work in a city governed by the general charter law, contractors are to be guided by the plans and specifications prepared and filed pursuant to see. 925 — 214, Stats. (1898), and have no right to rely upon a “bidding sheet” containing computations of the amount of excavation and other work to be done, though prepared and furnished to them by the city engineer; and where such plans and specifications are correct, and especially where the contract in terms provides that the work shall be done in accordance therewith, the contractor cannot recover extra compensation for work required thereby, even though it is in excess of the amount shown by such bidding sheet.
    4. The statute has placed the burden of computing the amount of work in such a case upon the bidders and not upon the city; and the courts are not bound to accept as true the testimony of witnesses to the effect that bidders could not compute the amount of excavation from plans which included profiles carefully drawn to scale, showing the existing surface of the street and the bottom line of the sewer.
    Appeal from a judgment of the circuit court for Rock county: Geoege G-eimm, Circuit Judge.
    
      Reversed.
    
    Action to recover compensation for extra services alleged to have been necessarily performed by tbe plaintiffs for tbe defendant under contracts entered into between tbe parties for tbe construction of sewers. On July 1, 1904, tbe defendant published a written notice to contractors tbat it would receive bids and sealed proposals for furnishing materials for tbe construction and completion of sewers upon certain streets named therein. One M. J. Benson made an offer to furnish tbe materials and do tbe work necessary for the construction of such sewers upon said streets according to tbe specifications, profiles, plans, and details on file in the office of the city clerk, and on or about tbe 8th day of August, 1904, tbe defendant accepted tbe proposal of said Benson to furnish tbe materials and construct said sewers, and tbe parties entered into contracts for their construction. After tbe commencement of tbe work of constructing said sewers, said Benson, with tbe knowledge and consent of tbe defendant, sublet tbe work to tbe plaintiffs and they completed tbe contracts. Tbe complaint alleged:
    “Tbat tbe specifications, plans, details and profiles for tbe construction of said work under said several contracts furnished by said defendant and its officers, were and are false, imperfect, misleading and inaccurate in many parts and particulars, and by reason of such, falsity, inaccuracy and incompleteness these plaintiffs were put to great expense and damage and loss of time and money in carrying out their said contracts, which was not within the contemplation of either party at the time of making said contracts, and which could not be foreseen by plaintiffs or by said Benson in entering into the same; and all of which labor and expense was in excess of the labor and expense it would have taken to have carried out said contracts had there been no such falsity, inaccuracy and incompleteness in said specifications, plans, bidding sheet, details and profiles of said work.
    “That for the purpose of the information of bidders on the proposed work in the several districts hereinbefore mentioned, and for the guidance and information of said Benson and these plaintiffs in entering into said contracts with the said defendant, the said defendant submitted plans and profiles, details and bidding sheet of the proposed work in the several districts; that said plans and profiles, details and bidding sheet were expressly made a part of said several contracts ; that such plans and profiles, details and bidding sheet were represented to the said Benson and to these plaintiffs as showing the surface grade of the several streets upon which such sewerage system was to be constructed and as showing the average cut or depth of trench necessary for the several sewers.
    “That said profiles, details and bidding sheets represented and were held out to these plaintiffs and to said Benson as being a correct representation and statement of the depth and amount of excavation that would be necessary to-be made upon each of the streets ^upon which such sewerage system was to be constructed, and every portion thereof, and that upon such representations these plaintiffs and said Benson relied as furnishing the information upon which they could and did figure the exact amount of excavation necessary under said several contracts, and it was so intended by said defendant that such plans and profiles, details and bidding sheets should be used for that purpose; that the said Benson and these plaintiffs relied upon and believed said plans and profiles, details and bidding sheets to be true and correct rep-reservations and statements of the grade of tire several streets and tire depth, to which such- sewer should he laid and the excavations necessary therefor.
    “That such profiles and plans, details and bidding sheets were and are defective, false and untrue, in that the said profiles and plans do not show the grade or surface o-f the street .at all and are incorrect, defective and false in that respect and the average cut and depth of excavation is incorrectly ¡stated in the bidding sheets and details; and that the said profiles and plans are so drawn and said bidding sheets are .so prepared as to. indicate that the amount of excavation necessary ■ for- the construction of such sewer is much less than the actual amount of excavation necessary to lay said sewer .according to the contracts.
    “That by reason of such defective and false plans and profiles, details and bidding sheets these plaintiffs were obliged to and did carry on excavations for all of said sewer.age system under all of said contracts to a much greater actual depth than shown by said plans and profiles, to a large expense and cost to these plaintiffs over and above and in excess of what it would have cost to have made the excavations in accordance with the plans and profiles, in the sum of •$5,555.70, no part of which has ever been paid, and that the •said sum is now justly due and owing to plaintiffs.”
    The answer denied the charge of inaccuracy of the plans, profiles, specifications, and details, pleaded payment in full for all and every liability growing out of the building and •construction of said sewers, and that it never had any contracts with the plaintiffs or either of them.
    The action was tried without a jury. The court made •findings covering many questions that do not arise on this ¡appeal, and entered judgment in favor of plaintiffs for extra .services in the sum of $2,079.72 with interest thereon from November 27, 1905. Erom such judgment the defendant .appealed.
    Eor the appellant there was a brief signed by H. L. Max-field, city attorney, and F. G. Burpee, of counsel, and oral .argument by Mr. Burpee.
    
    They contended, inter alia, that tbe contract was nonassignable without tbe city’s consent. Burch v. Taylor, 152 IJ. S. 634; Omaha v. Standard Oil Co. 55 Neb. 337; Murphy v. Plattsmouth, 78 Neb. 163; Deffen-baugh v. Foster, 40 Ind. 382; Skobis v. Ferge, 102 Wis. 122;, Johnson v. Tickers, 139 Wis. 145. Tbe statute determines tbe rights of tbe parties, and tbe estimates did not enter into tbe contract. Chippewa B. Co. v. Durand, 122 Wis. 85; Bichetson v. Milwaukee, 105 Wis. 591; Kavanaugh v. TVau-sau, 120 Wis. 611; Burnham v. Milwaukee, 100 Wis. 55; Lee v. Bacine, 64 Wis. 231; Appleton W. W. Co. v. Appleton, 132 Wis. 563; Bief v. Continental C. Co. 131 Wis. 368; More v. Milwaukee M. Co. 126 Wis. 41.
    For tbe respondents there were briefs by Jejfris, Mount, Smith <& Avery, and oral argument by William Smith.
    
    To tbe point that tbe city was responsible for tbe erroneous estimates, they cited Bentley v. State, 73 Wis. 416; Burnham v. Milwaukee, 100 Wis. 55; 30 Am. & Eng. Eney. of Law (2d ed.) 1202; Shisser v. Burlington, 47 Iowa, 300; Wood v. Fort Wayne, 119 IT. S. 312; Bobinson v. Bohr, 73 Wis. 436; Damkoehler v. Milwaukee, 124 Wis. 144, 149; Bunker v. Hudson, 122 Wis. 43; 1 Dillon, Mun. Corp. § 237; and other cases.
   ViNJE, J".

Tbe first question raised by tbe defendant is that'there was no assignment of tbe contracts from Benson, tbe principal contractor, to tbe plaintiffs, that was binding upon tbe defendant, owing to tbe fact that it never knew of, or consented to, such assignment. Tbe trial court, however, found that it did, and we are strongly urged to set aside such finding as not supported by tbe evidence. We deem it unnecessary to determine tbe precise question raised, because tbe city is not seeking, by counterclaim or otherwise, to enforce any liability against tbe principal contractor or the plaintiffs, but only attempting, by defensive matter, to escape tbe liability sought to be enforced against it. All tbe work required to be done under tbe contracts was done by tbe plaintiffs with tbe knowledge and consent of tbe defendant. For it is admitted that Benson sublet tbe work to tbe plaintiffs; tbat tbe defendant consented in writing thereto; and tbat all tbe work called for by tbe contracts bas been fully performed. Tbat being so, it is not perceived bow tbe defendant is prejudiced by an assignment to tbe plaintiffs of whatever claim there may be under tbe contracts by tbe rightful owner of such claim. Confessedly such owner was either Benson or tbe plaintiffs. Benson having assigned to tbe plaintiffs, tbe defendant is amply protected by such assignment from further suits by him. Hankwitz v. Barrett, 143 Wis. 639, 128 N. W. 430. And defendant was in position to interpose any defense against tbe plaintiffs tbat would have availed against Benson. So we must conclude tbat tbe assignment was valid and tbat plaintiffs were entitled to maintain tbe action.

Tbe more important question is whether or not plaintiffs necessarily did more work than their contracts called for. Tbe solution of this question will depend upon whether or not tbe plaintiffs were entitled to rely upon a so-called “bidding sheet” or estimate of cuts, hereinafter mentioned. Tbe incorrectness of this sheet was admitted. It appears tbat tbe defendant city, as to sewers, is operating under tbe general charter law found in secs. 925 — 208 to 925- — 239c, Stats. Such law provides in secs. 925 — 208 to 925 — 212 tbat tbe city shall be divided into sewerage districts and a plan shall be adopted; tbat diagrams of tbe plans of tbe sewerage for each district shall be prepared, showing tbe lots and parcels of land, tbe main sewers, minor sewers, manholes, catch-basins, and all other matters pertaining to tbe system. It further provides for notice to be published of tbe proposed plan, of a bearing of objections, and a report thereon to tbe common council. Tbe latter “shall then examine tbe same and may approve tbe plan as proposed or change it in such manner as they think proper, and approve as changed or modified by tbem, or may reject tbe plan and direct tbe board to propose a new plan, in wbicb case proceedings shall be bad as before.” Sec. 925 — 211. Tbe nest section provides that “when tbe plan for any sewerage district is finally ■determined complete diagrams of tbe same shall be prepared in duplicate and certified to be correct by tbe board of public works; one of such diagrams shall be filed in tbe office of tbe ■city clerk and one in tbe office of tbe register of deeds of tbe county within which the city is located.” It is also made •obligatory on tbe board of public works to present to tbe council on nr before tbe first Monday of March in each year a report “of tbe sewers necessary or advisable to' be constructed during tbe ensuing year.” This report tbe council may approve as made or as changed or modified by it. ■Sec. 925 — 213. Tbe provisions of sec. 925 — 214 are that:

“After tbe council shall have ordered tbe construction of any sewer tbe board of public works shall advertise for and receive bids to do tbe work so ordered, having first procured to be carefully prepared and put on file in tbe office of tbe board, for the examination and guidance of bidders, plans and specifications describing tbe work to be done and tbe kinds and qualities of materials to be used, as directed by tbe council, and shall let tbe contract to tbe lowest responsible and reliable bidder; provided, however, that tbe board shall have tbe right to reject all bids and re-advertise for proposals if they believe none of tbe bidders are responsible or that any agreement has been entered into between bidders to prevent competition; and provided further, that tbe contract shall not be binding till approved by tbe council and countersigned by tbe comptroller.”

It is apparent from this scheme that every step in tbe progress of tbe construction of sewers, from tbe first proposed plan until tbe approyal of tbe contract by tbe city comptroller, is a matter of record, and is a matter upon wbicb tbe city as ■such acts. Sec. 925 — 214 prescribes precisely what tbe board of public works shall cause to be prepared and put on file for tbe examination and guidance of bidders, namely, plans and specifications describing tlie work to be done and tbe kinds and qualities of material to be used, as directed by the council. The rule Expressio unius est exclusio alterius certainly applies here. In express terms the statute says, what bidders shall examine and be guided by, namely, the plans, specifications, etc., prepared by the city pursuant to-law and put on file for that express purpose. ETo mention or hint of any bidding sheet or estimate of cuts prepared by the city engineer or any one else is made. Indeed, the very contract entered into between the parties excludes the idea of any such sheet having been the basis thereof or even the-inducement therefor. It says:

“Whereas, The said party of the first part hath made to-the city of Janesville a proposal in writing, which is hereto-annexed, marked ‘Exhibit A,’ to furnish all the material and do all the work for the construction and completion of certain sewers mentioned in said proposal, according to the specifications therefor, hereto annexed, marked ‘Exhibit B,’ and the profiles, plans and details thereof on file in the office of the street assessment committee, in the city clerk’s office in said city; and tfie contract for doing said work has been awarded to the said party of the first part in the manner provided bylaw:
“How, therefore, the said party of the first part, hereinafter-designated ‘the contractor,’ for and in consideration of the covenants and agreements hereinafter contained, hereby covenants and agrees to and with the city of Janesville to furnish all the material and do all the work necessary and required for the construction and completion of -the sewers in the streets, parts of streets, alleys, public grounds and lots mentioned in said proposal, and to prosecute the same diligently to their full completion, in accordance with and pursuant to» the specifications therefor, and the profiles, plans and details thereof, and subject to the superintendence and direction of' the street assessment committee, as in said specifications and this contract set forth. And said proposal, specifications,, profiles and plans respectively, are hereby made a part of this-contract, and mutually binding and obligatory in all respects to the same purpose and effect as if incorporated in this contract; and all the requirements thereof respectively are agreed upon as of the terms of this contract, .and as well of the character and quality of the material to he used and the manner of the construction of the said sewers therein specified and set forth, and the price to be paid for the construction and completion of said sewers.”

This sets forth clearly that the plaintiffs agreed to furnish the material and do the work in accordance with and pursuant to the specifications, profiles, plans, and details on file in the city clerk’s office, which were by the terms of the contract incorporated therein and made a part thereof. .When we come, therefore, to inquire what the plaintiffs agreed to do, we find it clearly set out in the contract itself. They agreed to do the work, not as per bidding sheet, but as per plans and specifications incorporated into the contract. The bidding sheet was a mere fugitive piece of paper entitled “Sewer Estimate of Outs in Janesville, Wis.” It was found by the trial court to have been given by the city engineer to the contractor, Benson, when he came to figure on the contract. The city engineer stoutly denied that he gave it to Benson and says it was prepared by his assistant at the request of certain other contractors, and that in the preparation of it his assistant did the work for the contractors and not for the city. Benson said, speaking of the bidding sheet: “I got the blue prints to figure on, at the same time he [the city engineer] gave me this to expedite and help me in the matter.” We will assume, however, that the fact is as found by the trial court, that it was given to Benson by the city engineer. Did the contractor have a right to rely upon it ? The sheet consists of a computation as to each street showing minimum, cut; maximum cut; average cut; distance of average cut; distance of cut over eight feet; and sizes of pipes. It is evident, therefore, that it is neither a plan, profile, specification, nor a detail, but a computation made from the profiles and specifications. It was not contemplated, called for, or- mentioned either in the statute or the contract. In dealing with a public corporation as the contractor did, he was bound to know tbe extent of tke authority of its officers as well as of the corporation itself. “It is a general and fundamental principle of law,” says Dillon in Ms work on Municipal Corporations, sec. 447 (4th ed.), “that1 all persons contracting with a municipal corporation must at their peril inquire into the power of the corporation or of its officers to make the contract ; and a contract beyond the scope of the corporate power is void, although it be under the seal of the corporation. . . . So, also, those dealing with the agent of a municipal corporation are likewise bound to ascertain the nature and extent of his authority. This is certainly so in all cases where this authority is special and of record, or conferred by statute. The fact that in such a case the agent made false representations in relation to his authority and what he had already done, will not aid those who trusted to such representations, to establish a liability on the part of his corporate principal.” He was therefore chargeable with, knowledge of the fact that the city engineer had no authority to change the depth of the excavations as shown by the profiles. The statute prescribed the mode of letting the contract and the basis upon which it was to be let, and that mode was exclusive and binding upon both the city and the contractor. He cannot now be heard to say that he relied upon something which he knew he had no right to rely upon. Eor every person dealing with an officer of a public corporation is presumed to know the extent of his powers in the particular case. Gilbert v. Pier, 102 Wis. 334, 78 N. W. 566.

Hut it is claimed that laymen and contractors could not determine the depth of cut from the profiles and therefore recourse to the bidding sheet was necessary. It is rather regretfully that we mention this claim, for it can hardly be disposed of without the use of language that may offend. The profiles were carefully drawn to scale with the horizontal and vertical scale plainly marked thereon, and showed the existing surface of the street in each case, and the base or bottom line of the sewer as to each street, yet in spite of this fact several witnesses testified that the contractors -conld not compute the amount of excavation therefrom. Such testimony challenges either the credibility or the intelligence of the witness, or both. The witness Lindquist emphasized this challenge by first testifying that it was not practicable to figure from the profiles, and then by saying that as the work progressed he frequently scaled the profiles to check up and to ascertain how deep their work was; and that he used the profiles in the progress of the work. Benson had been in the sewer contracting business for ten years and Lindquist for fifteen years. They were neither laymen nor tyros. It would seem as though it were high time they understood profiles. So much by way of a gentle reminder to witnesses that courts are not bound to accept as true all testimony that is given.

We have stated that the profiles showed the existing surface of the street in each case. This is true, though such fact did not appear from those profiles on which only the established grade of the street was marked. The established grade of each street, however, was a matter of public record, and the survey made by plaintiffs’ witness Clausen, which was a surface survey of every street in question, shows that the established grades corresponded to the actual surface or else there would not have been a practical correspondence between Mr. Clausen’s survey and the profiles. That there was such a correspondence is shown by Mr. Clausen’s testimony and is not disputed. The contractors, by the profiles, plans, specifications, and details, were furnished correct data upon which to base their bid. That a correct so-called estimate of cuts or bidding sheet would have saved them considerable work in computation is self-evident. But the statute has seen fit to place the burden of computation upon the contractors and not upon the city, and there we must let it rest.

As no claim is made that more work was done or material furnished than was called for by the profiles, plans, specifications, and details, and as these were all admitted upon the trial to be correct, it follows that plaintiffs’ claim should have been disallowed in full. This disposition of the case renders it unnecessary to consider a number of questions* discussed in the brief and upon the oral argument.

By the Oourt. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon the merits.  