#### O’Neill, Respondent, vs. City of Milwaukee, Appellant.

*February 25*

March *22, 1904.*

*Municipal corporations: Public worTcs: Contracts: Mistalce of city-engineer: Recovery by contractor for resulting damage: Waiver.*

1. Plaintiff contracted witli defendant city to construct a waterworks crib and place it in Lake Michigan at a specified point, to he located hy the city engineer. The work was to he done-under the superintendence and to the satisfaction of the hoard of public works, and the city engineer (who was president of said hoard) was to do all the requisite surveying. The place for the crih was designated by the engineer accordingly, and' plaintiff prepared the lake bottom for it, hut the spot was not marked hy fixed monuments. When the crih was ready to be-sunk, plaintiff notified the engineer, who thereupon attempted to relocate the place previously agreed upon, and took charge-of the work of sinking and placing the crih, the other members of the hoard being present sanctioning the execution of the work. By mistake of the engineer the crih was sunk about fifteen feet from the spot which had been designated and prepared for it, thereby causing it to lean over and rest insecurely and to be damaged hy a storm occurring soon after. *Held,*that under the contract as practically construed by the parties it was the duty of the engineer to relocate the spot which had been designated for the crih, and that the city was responsible for the damage resulting from his mistake.

2. The hoard of public works, after being informed of the facts and notified hy plaintiff that he would look to the city to make good to him the damages, insisted that plaintiff complete his. contract, and he did so hy moving the crih to the proper place and repairing" the damage caused hy the mislocation, under-protest of any waiver of his claim for the extra expense. *Held,*that he did not thereby waive such claim.

Appeal from a judgment of the circuit court for Milwaukee county: WaeeeN D. TaheaNT, Circuit Judge.

*Affirmed.*

Plaintiff brings this action to recover damages for an alleged breach of contract. Plaintiff and defendant city of" *Milwauhee*entered into a contract on June 30, 1890, whereby plaintiff agreed and undertook the construction and plac*33ing of a crib in Lake Michigan, forming part of a new intake in connection with the waterworks system of the city. The plans for snob improvement required the construction of a tunnel running from near the shore, beneath the bottom of Lake Michigan, a distance of about 3,100 feet, at which point it was planned to connect with a crib which was to he placed at the bottom of the lake, connected with the tunnel and with pipes which were to be extended to a considerable distance into the lake. Plaintiff’s contract was for the construction and the placing of the crib. He undertook to construct the crib according to the plans and specifications, and to place it as required by the contract and the plans and specifications. The crib was a twelve-sided polygon, fifty-six feet in diameter, and inside was a well with a diameter of twenty feet and a depth of twenty-nine feet, with the bulkhead around the well divided into six watertight compartments. The exterior and the interior walls running to the center well, and other work, were to he built of twelve by twelve inch timbers bolted together. Through the center of the floor of the crib extended a steel tube eleven feet in diameter and seven feet long, the upper end" flush with the floor and the lower end projecting two feet below the bottom timbers. The crib to be watertight in all compartments, which were to be filled with concrete after the crib was located. Plaintiff’s contract required him to sink the crib at a place to be designated by the city engineer.

The charter of the defendant city, in prescribing the duties of the city engineer, provides: “It shall be his special duty to superintend and to do or cause to be done all the civil engineering required by the board of public works in the management and prosecution of all public improvements committed to their charge, and all such other surveying as may be directed by said board or by the common council,” and' that said engineer shall be *ex officio*a member of the board of public works, and president thereof. The charter further *34provides that it shall be the duty of tbe board of public works to take charge and superintendence, subject to the ordinances of the city, of the maintenance of streets, alleys, bridges, and all other public grounds, buildings, and improvements, and all work pertaining thereto, and that:

“They shall have power to make contracts in the name and behalf of the city for the purposes and in the manner and under the limitations prescribed. . . . They shall perform all the duties prescribed by [the charter], and such other duties as the common council may frern time to time require.'’'’

All contracts for and in behalf of the defendant city shall be awarded to the lowest bidder, under the teims and conditions of the charter, and they must be executed to the satisfaction of the boax’d of public works under the superintendence of the board. The specifications for the work covered by the contract in this case contained these provisions:

“All the work during its progress and on its completion shall conform exactly to the lines and gi’ades shown on the drawings mentioned in these specifications and given by the engineer in charge, subject to such modifications as the board of public works may deem necessary dui’ing its execution.” “All work contemplated and described in these specifications shall be done to the satisfaction of the board of public works and city engineei’.” “The engineer will do all the requisite surveying for the work so as to cause as little inconvenience as possible, but the contractor will have no claim on account of delay or stoppage of the work necessitated by such surveying, and shall furnish assistance to facilitate giving lines and grades.”

It was further agreed that plaintiff would execute and pei’-foirn said work under the supei’intendence of the board of public woi’ks. He was required by the contract to pi’epare the lake bottom at the place designated to receive the crib, by dredging the bottom to a smooth, level bed, and to sink the crib in the place so prepared. The specifications provided that the crib should be “settled in place at a point 3,140 feet *35■due east from the shore shaft,” to be located by the engineer, and that the parties to the contract might, by agreement, select a point in that direction, and at approximately that distance from the shaft. This point for locating the crib was changed by agreement before the plaintiff started dredging, for the reason that there were bonlders in the northern portion necessary for the placing of the crib, and the point was therefore shifted thirty feet to the south. Plaintiff dredged' the area so last above designated, and on December 24, 1890, notified the city engineer that he was ready to set the crib. The city engineer then marked the point by means of triangulation, and directed plaintiff to sink the crib at the point so located. Plaintiff alleges that he sunk and placed the crib as directed. It was subsequently discovered that it had been placed at a point about fifteen feet from the place agreed upon and prepared. Plaintiff charges that such misplacing was due to the carelessness of the city engineer, and caused him damages as alleged in his complaint.

This action is brought charging breach of the contract in the respect above mentioned, and claiming damages as the result of such breach by injuring the crib and causing expenditures for replacing it. The issue was referred to Hugh Ryan, as referee, on April 15, 1897, to hear, try, and determine. He made his report on December 15, 1902. The material findings were substantially as follows:

After the execution and delivery of the contract, performance thereof was from time to time duly extended until August 1, 1891. The point designated in the specifications for the location of the crib was not inserted for the purpose of definitely fixing the location, but for the purpose of ascertaining the length and direction of the tunnel as part of'the waterworks intake system. At the time of the contract the point at which the crib was required to be located and sunk had not been determined, nor was it designated by any monument or object. After the making of the contract, and be*36fore plaintiff was ready to place tlie crib, tbe city engineer made, or caused measurements to be made, to ascertain and designate tbe point at wbicb tbe crib was to be located and sunk, and marked tbe same by placing three buoys in a line to designate tbe center line of tbe location of. tbe crib. Boulders at tbe point selected necessitated a change, 'and it was agreed by plaintiff and defendant that tbe location should be changed a few feet to tbe south. Thereupon plaintiff caused this area to be dredged so as to make a smooth, level place for tbe crib with a proper excavation at tbe center, about two feet in depth, for tbe purpose of admitting a steel tube forming part of tbe crib.

In dredging the lake bed tbe buoys were necessarily displaced, and one of them was carried away by tbe action of tbe elements. Plaintiff notified tbe board, but tbe buoys were never reset by tbe city engineer. On December 24, 1890, tbe crib was ready for sinking, and plaintiff notified tbe city engineer that be was ready, and bad provided a sufficient number of men, tugboats, tackle, and other appliances for sinking and placing it. Tbe city engineer, under tbe direction of tbe board of public works, with the aid of bis assistants, undertook to find tbe point last designated and agreed upon for tbe location of tbe crib, and then and there took full charge of tbe work of sinking it, and caused it to be sunk at a place designated by him.

Tbe referee specifically found:

“That said crib was not sunk on said 24th day of December, 1890, at tbe place wbicb bad theretofore been designated by said engineer and agreed upon1 ... as tbe place where the same was to be sunk, and where tbe bed of tbe lake bad been dredged and prepared, . . . but was sunk about fifteen feet south of said location; . . . that as said crib was sunk tbe north edge thereof projected over tbe depression in tbe center of the prepared ground, and was unsupported, while tbe south edge thereof rested upon a bank or shoulder of ground at tbe edge of tbe place wbicb bad been *37dredged as the location for said crib.” “That the mislocation of said crib and tbe sinking thereof at the place other than that prepared for it-was wholly due to the mistake of the city engineer and his assistants, acting under his direction and control, in failing to ascertain and point out the spot which had theretofore been designated by said city engineer and agreed upon between the plaintiff and defendant as the place at which the said crib should be located and sunk.” “That while the employees of the plaintiff were loading .said crib with stone on the night of December 24, 1890, it was discovered that said crib listed, or leaned to the north. That thereupon, on the 25th or 26th day of December, 1890, the plaintiff notified the city engineer and board of public works of the defendant of the fact that said crib leaned or listed as aforesaid, and was instructed by said engineer and board of public works to proceed with the loading' of said crib, notwithstanding said listing or leaning. That said crib when fully loaded leaned or listed so that the south side was about eighteen inches higher than the north side. That said leaning or listing was due to the fact that the north edge of said crib was unsupported, while the south edge rested upon a bank or shoulder of earth at the margin of the dredged space.” “That on the night of December 31, 1890, •a violent storm occurred, by which the said crib was greatly wrenched and injured, the cover being torn off, and the perpendicular joints at the angles, especially those on the northerly side, opened and spread apart. That the injury and damage to said crib by said storm was wholly due to the insecure and partially unsupported position in which said crib rested, by reason of such mistake of the city engineer and board of public works of said defendant, and not attributable to any negligence or lack of skill of plaintiff.”

Plaintiff temporarily repaired the injury done by the storm. The board of public works at various times notified plaintiff to proceed to the completion of the crib, and on March 9, April 9, and May 19, 1891, gave him written notice to move the crib to its proper position, and to repair the same.' Plaintiff protested, and claimed that the misplacement and consequent injuries were due to the mistake of the *38*city engineer. Before making*repairs lie served a notice on the defendant that he would hold the city liable for the damages caused him. In making the repairs he used large quantities of materials and appliances and employed a large-number of men, and for these items expended the sum of $6,015.32. It was also necessary to purchase special machinery, which was sold for but a small part of its cost. When plaintiff offered the crib for acceptance, defendant claimed that it was defective, and put him to an expense of $2,144.94 in making an examination. For this work he rented a pump, engine, boiler, and fittings. The rental amounted to $1,410. Plaintiff spent in the superintendence of the repairs 107 days, and sixty-seven days in testing the crib for the alleged defect, and was allowed $10 per day for such superintendence. The total allowance to plaintiff by the referee-amounted to $11,222.47. The referee further found that plaintiff had complied with all the provisions of the contract on his part.

The findings of the referee were approved by the court, and judgment was awarded in accordance therewith. This-is an appeal from that judgment.

*Carl*Runge, city attorney, and *Thos. H.*Dorr, of counsel, for the appellant.

For the respondent there was a brief by Quarles, *Spence &*Quarles, attorneys, and *George Lines,*of counsel, and oral argument by *Mr. Lines.*

They argued, among other things, that the city is liable for the mistake in the location of the-crib, by which the cost to- plaintiff of completing the work was increased. The board of public works is an executive department of the city government, and in the carrying out of public improvements is *pro hac vice*the city itself. Milwaukee City Charter, ch. 5, sec. 1; *Koch v.*Milwauhee, 89-Wis. 220. As to its ministerial duties in relation- to work done under contract for the city, *i. e.,*its duties with respect to the giving of practical working directions, the board is, *39like an architect or engineer under a private building contract, the agent of the party for whom the work is done, and suck party is responsible for damages caused by the agent’s defaults or neglects. *Bentley v. State,*73 Wis. 416; *Laycock v. Moon,*97 Wis. 59; *Ashland L., S. & 0. Co. v. Shores,*105 Wis. 122; *Seymour v. Long Dock Co.*20 N. J. Eq. 396; *Messenger v. Buffalo,*21 N. Y. 196; *Mulholland v. New York,*113 N. Y. 631, 24 Am. & Eng. Corp. Gas. 612; *Morgan v. Mayor,*160 N. Y. 516. Under a contract by which the plaintiff undertook to construct a bridge in accordance with certain plans and specifications and which imposed on the townships having control of the highway the duty to designate the location for such bridge, the contractor was held entitled to recover the cost of additional work made necessary by reason of an error of the townships’ agent in pointing out the location. *Wyandotte & D. B. Co. v. King Bridge Co.*100 Fed. 197; *Wood v. Ft. Wayne,*119 U. S. 312; *Kellogg Bridge Co. v. Hamilton,*110 U. S. 108; *Becker v. National P. Co.*69 Hun, 55; *Nason Mfg. Co. v. Stephens,*3 N. Y. Supp. 303, 127 N. Y.’ 602.

SiebecKER, J.

The defendant city of *Milwaukee*contends that the referee and trial court erred in finding that the plaintiff had in all respects complied with the provisions of the contract. It is argued that the evidence fails to sustain the finding that the required area of the lake bed had been dredged by the plaintiff so as to make a level, smooth place for the crib to rest on at the place designated by the city engineer under the final agreement between the parties. It is without dispute that the place originally designated by the city engineer as the place where the crib was to be located was changed by mutual consent, when plaintiff attempted to dredge the required area at this place, on account of the serious obstructions in the lake bed, and that such change of location was to a point about thirty feet south from *40tbe location originally designated and marked by tbe city engineer. Tbe court approved tbe finding that plaintiff properly dredged tbe required area of tbe lake bed at tbe place last agreed upon. This is mainly attacked upon tbe ground tbat tbe foreman in charge of tbe dredging crew stated tbat tbis dredged area was east of tbe original location, instead of south of it, as agreed upon by tbe parties and designated by tbe city engineer. There is considerable evidence tending to show tbat at tbe time tbe change was made tbe location of tbe dredge was moved to' tbe south to tbe place then designated by the city engineer. Subsequent location of tbe area dredged corroborates tbe fact tbat tbe dredging was at the place designated, and about thirty feet south of tbe original location for tbe crib. Upon tbis state of tbe proof it seems tbat tbe referee and court were justified in concluding tbat tbe foreman was in error when be testified tbat tbe dredging was east, instead of south, of tbe original location. Tbe evidence as to tbe extent of tbe area dredged and as to its being a smooth, level place is clearly sufficient to sustain tbis finding. Tbe facts tbat tbe crib was finally placed at tbis point; tbat when so placed it rested properly and firmly upon its base, correct as to level; and tbat tbis area presented evidences of having been dredged and excavated at its center for tbe projecting steel tube — would almost lead to a demonstration tbat a sufficient area bad been dredged, leveled, and smoothed at tbe place last agreed upon and designated by tbe city engineer for tbe location of tbe crib.

Tbe main controversy raised on tbis appeal pertains to tbe alleged mistake of tbe city engineer 'and bis assistants, acting under bis direction and control, in failing to ascertain and point out tbe correct location for placing tbe crib at tbe agreed place. It appears tbat plaintiff notified tbe city engineer at tbe noon hour on December 24, 1900, of bis readiness to sink and place tbe crib; tbat thereupon tbe city engineer, by aid of bis assistants, attempted to point out tbe *41■exact point theretofore agreed upon and designated as the place of location; and that plaintiff had smoothed and leveled the designated area as required under the contract. In order to designate the place of locating the crib as agreed upon, the city engineer ordered two of his assistants to fixed points, from which the place of location could be determined hy triangulation, and he went upon the crib, and directed plaintiff and his employees to sink it at the point at which it was placed by them on the 24th day of December. Aside from the evidence showing these facts, there is additional evidence tending to support the referee’s findings that the board of public works, by and through the city engineer, as one of its members, took full charge and direction of setting the crib at the place of the lake bed as designated on the 24th ■day of December, and that the crib was in fact placed at the point designated by the city engineer, which was about fifteen feet south of the place theretofore fixed by agreement.

Without further specific discussion of the evidence, we find from an examination of it that the findings of the referee -and the circuit court upon these points, as well as those .attacked upon this appeal, concerning the questions of the ■crib’s listing, the perfect construction and condition of the crib, the caulking of the well as required by the specifications, the injury to the crib resulting from the mistake of the engineer in failing to locate it in the place agreed upon T>y the parties, and the damages to plaintiff in making the necessary repair of the crib and placing it in a position to make it available for the purpose contemplated by the contract, are not against the weight of the evidence, but seem to be supported by it.

It is contended that the court erred in construing the contract in holding that it was the duty of the engineer to place :and locate the crib. It is admitted that the city engineer was to do the requisite surveying for the work, and that all "the work covered by the contract was to' be done to the satis*42faction of the board of public works and tbe city engineer. Tbe engineer bad designated, conformably to' tbe specifications, tbe place for tbe crib. Tbis place was subsequently abandoned, and another selected by mutual agreement. Tbis last point was not marked or designated by fixed monuments as a guide to plaintiff in completing bis contract in placing and sinking tbe crib. It therefore devolved upon the engineer, acting for tbe board of public works, to ascertain and point out tbis place to plaintiff on December 24th. It is-manifest that tbe parties so understood tbe contract from the practical construction they gave it on tbe day tbe crib was sunk and placed. Plaintiff called upon tbe engineer to perform tbis duty. He complied by taking charge of tbe undertaking to place tbe crib, and tile members of tbe board Were present, sanctioning tbe execution of tbe work. Tbe evidence indicates that tbe plaintiff and tbe members of tbe board of public works understood it was tbe duty of tbe engineer to find and designate tbis place.

Tbe injury to tbe crib, and tbe consequent extra expense incurred by tbe plaintiff to repair and place it at tbe agreed-location conformable to tbe obligations imposed by tbe contract, were due to tbe default of tbe board of public works, representing tbe defendant city, in performing one of its corporate functions.

After tbe board of public works were fully informed of tbe failure in locating tbe crib as agreed, and were notified by plaintiff that be would look to defendant to make good to him all tbe damages resulting therefrom, tbe board insisted that plaintiff fully perform and carry out all tbe obligations-imposed by tbe contract which then remained unfulfilled. Tbe plaintiff thereafter performed bis contractual obligations -by placing tbe crib at tbe place agreed upon, and be repaired tbe injuries caused by tbe mislocation under protest of any waiver of bis claim for extra expenses be incurred through'tbe city’s default. Under such circumstances plaint*43iff does not waive bis claim- for damages bj proceeding to-complete tbe contract upon demand of tbe defaulting party. In tbis situation be may perform so far as be is permitted, and recover tbe damages suffered from tbe breach. *Markey v.*Milwaukee, 76 Wis. 349, 45 N. W. 28; *McMaster v.*State, 108 N. Y. 542, 15 N. E. 417.

These considerations lead to tbe conclusion that tbe city was in default in performing its part of tbe contract, resulting from tbe mistake of tbe city engineer in failing to locate and sink tbe crib at tbe place agreed upon by tbe parties, and that such default resulted in damages to tbe plaintiff which be is entitled to recover in tbis action. *Markey v. Milwaukee, supra; Wyandotte & D. R. R. v. Kin*g *Bridge*Co. 100 Fed. 197; *Horgan v. Mayor,*160 N. Y. 516, 55 N. E. 204; *Seymour v. Long Dock Co.*20 N. J. Eq. 396. Tbe amount of extra expenses incurred by plaintiff in the repair of tbe injuries to tbe crib and sinking it at tbe agreed place, found by the referee and court, is not seriously questioned.

It is argued that tbe amount allowed plaintiff for bis personal services is excessive and not sustained by the proof. Tbe evidence upon tbe point was conflicting, and the finding must stand as not against tbe clear preponderance of tbe evidence. We find no grounds upon which any of -the findings of fact can be disturbed. The judgment was properly awarded for the amount, with interest.

*By the Gourt.*— Judgment affirmed.