Thomsen-Abbott Construction Co.v.Wausau

Supreme Court of WisconsinFeb 2, 1960
9 Wis. 2d 225 (Wis. 1960)

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January 4, 1960 —

February 2, 1960.

APPEAL from a judgment of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.

For the appellant there was a brief by Peickert, Anderson Fisher and John E. Shannon, Jr., attorneys, and Gerald M. O'Brien of counsel, all of Stevens Point, and oral argument by Hiram D. Anderson, Jr.

For the respondent there was a brief by Kelley Maeder of Wausau, and oral argument by John W. Kelley.



Action by the contractor on a public building contract to recover from the defendant city for the extra cost of "dewatering" the building site made necessary by the city's change in the concrete-footing plans so as to place most of the footings considerably below the ground water table.

In 1955, the city advertised for bids for the construction of a building known as the "city garage and storage building" on a site owned by the city near the banks of the Wisconsin river. The site many years before had been a slough of the river which had been filled in by the city. That this had once been a slough was unknown to the plaintiff although known to the city director of public works. In order to provide the architect with information to enable him to design the footings, the city dug four test holes by means of a machine known as a "back hoe." The machine came upon layers of muck of different depths at different levels and reached gravel at different levels. Measurements were taken of the depth of each hole to the gravel bottom. The testimony is conflicting as to whether the measurement given by the city to the architect as to where gravel was to be reached was obtained by averaging the depths of the four holes or by taking the depth of the deepest hole.

The architect's blueprint drawings or plans for the concrete footings in five different places show the elevation for the bottom of such footings to be "1,157'00", which means 1,157 feet above sea level. The footing blueprint drawings also had "general notes" in the lower right-hand corner setting forth various factual information including the following, "soil pressure — 6,000 lbs. per square foot assumed at depth indicated." The depth indicated was that of the bottom of the footings.

Approximately twenty years before 1955 the plaintiff had as contractor constructed a sewage-disposal plant for the city a short distance to the north of the site for the new garage and storage building. In looking over the plans and blueprints for the latter building, Mr. Abbott of the plaintiff corporation noticed such depth measurements and data on the footing blueprints and telephoned the architect about them. In such conversation Abbott told the architect that in building the sewage-disposal plant, good gravel had been found at a lesser level, and he asked why the footings had to be as deep as shown on the blueprints. The architect replied that the test holes had disclosed muck and that was the reason for carrying the footings to the depth shown.

The plaintiff, before submitting its bid, carefully investigated the ground water table and found that the specified elevation for the bottom of the footings was six inches below such water table. In making its cost computations preparatory to bidding, it estimated the cost of dewatering the site to a depth of one foot in order to lay the bottom of the footings dry at $1,700. The plaintiff proved to be the low bidder and was awarded the contract.

The architect's drawings and specifications, the instructions to bidders, the advertisement for bids, and the A. I. A. (American Institute of Architects) General Conditions for Building Contracts, 6th edition, were all made part of the contract documents and incorporated therein by reference.

The part of the contract, which refers to excavation and unit prices for concrete, reads as follows:

"Contractors shall visit the site and make their own determination as to the character of excavation, and any special hazards which may affect the method of construction and/or the cost of the work. . . . Should suitable bearing not be encountered at the elevations indicated on the drawings, excavation shall be carried to such elevations as directed by the architect. . . . Any differences between the final depth of foundations and those shown on the drawings will be checked by the architect and differences in quantity of material will be the subject of a change order. The price for additional or less concrete will be adjusted on the basis of the unit price for concrete foundations as submitted by the contractor with his proposal. The unit cost per yard of concrete will include excavation for said work, forming, etc. . . . If it should become necessary to alter the foundation design due to local conditions, I (we) hereby agree to furnish any additional or less concrete as required, complete in place, including necessary excavation, backfill, reinforcing, forming, etc., for the sum of $74 per cubic yard."

In submitting bids each bidder was requested to include a unit price per cubic yard of concrete in its bid, and the plaintiff's bid specified a unit price of $74 per cubic yard of concrete.

Article 15 of the A. I. A. General Conditions, which were incorporated into the contract, provides as follows (p. 35):

"The owner, without invalidating the contract, may order extra work or make changes by altering, adding to, or deducting from the work, the contract sum being adjusted accordingly. . . .

"Should conditions encountered below the surface of the ground be at variance with the conditions indicated by the drawings and specifications the contract sum shall be equitably adjusted upon claim by either party made within a reasonable time after the first observance of the conditions."

After commencing to work and excavating down to level 1,157', the plaintiff found muck, humus, and decayed vegetable matter of poor weight-bearing qualities over almost the entire site. The weight-bearing qualities of the material found were much less than 6,000 pounds per square foot as indicated on the drawings and would not support the building. The footings would undoubtedly have sunk into the muck.

The plaintiff, city authorities, and the architect discussed the three possible solutions to the problem, namely, (1) digging out the muck and filling it in with gravel to level 1,157', (2) enlarging the footings so they would carry the weight on the muck, and (3) taking the footings on down below the muck to sand and gravel.

The work was temporarily halted and the city through its architect then authorized and directed the plaintiff in writing to take the footings down to whatever depth necessary to reach sand and gravel which would be 6,000 pounds per square foot bearing. The plaintiff complied as provided by the contract provision giving the city the right to control the work and require extra services. The plaintiff at that time gave the city notice in writing that it expected to be paid the extra expense of dewatering.

Of the 70 concrete footings called for in the drawings, 61 had to be lowered below level 1,157' as called for on the drawings and specifications. One footing had to be lowered less than one foot; 15 footings had to be lowered a distance of one to two feet; 19 footings had to be lowered a distance of from two to three feet; 19 more footings had to be lowered a distance from three to four feet; six footings had to be lowered a distance of between four and five feet; and one footing had to be lowered from five to six feet. Nine footings, all in one corner of the building, were raised, five of them raised less than one foot and four raised less than two feet. This change in the footings ordered by the city required the contractor to "dewater" or lower the ground water table at the site an additional six feet in order to lay the concrete footings.

A dewatering system consists of a large number of well points driven into the ground and connected to a closed pipe and a large pump which pumps water from all the well points simultaneously. The combined cones of influence of all the wells being pumped simultaneously pulls the ground water table down temporarily while the pumps are working.

When construction commenced, the plaintiff had on hand a dewatering system that was sufficient to reduce the groundwater level the necessary 12 inches to level 1,156' in order to lay the concrete footings dry if the conditions underground had been as indicated by the architect's drawings. Such system consisted of 27 well points and a gasoline pump and he could have dewatered the entire site a foot or so at one setting with little difficulty and pumping for only ten days.

However, to accomplish the task of dewatering the site an additional six feet, in order to carry the footings to the additional depths directed by the architect, required the plaintiff to obtain 44 additional well points, making in all 71 of such points used in the dewatering process. These 71 points were driven in one third of the site area at a time. As a result, pumping continued twenty-four hours per day, seven days per week, for approximately three months. A larger pump was also required than would have been necessary if only the original 27 points had been used.

The additional cost of such dewatering over and above the $1,700 figure, which the plaintiff had originally estimated it would cost to dewater if the footings had been poured at the depth shown in the architect's drawings, was $6,681.41. The actual cost of the additional concrete needed because of the change in plans, if such extra dewatering cost be included figured out to $750 per cubic yard.

The plaintiff filed a claim with the city council for such $6,681.41, and it was disallowed by operation of law as a result of nonaction by the council. The instant suit was then commenced by the plaintiff and it was tried to the court without a jury by stipulation of the parties. The circuit court interpreted the contract as providing that the unit price of $74 per cubic yard covered any cost of dewatering made necessary by the change in plans judgment was entered April 21, 1959, dismissing the plaintiff's complaint upon the merits with costs to the defendant city. From such judgment the plaintiff has appealed.


The controlling issue raised by this appeal is whether the clause of the contract, which provides for adjustment of the contract price on the basis of $74 per cubic yard of concrete in the event more or less concrete is required in laying the foundations than called for by the plans, covers the item of the extra cost of dewatering made necessary by lowering the footings to a depth greater than shown on the plans. Such contract clause will hereinafter be referred to as the "unit-price provision."

The defendant city takes the position that the unit-price provision does cover the dewatering and the circuit court upheld such contention. On the other hand, the plaintiff contractor maintains that Article 15 of the A. I. A. General Conditions (hereinafter referred to as "Article 15"), which was incorporated into the contract and made a part thereof, controls, and that the unit-price provision is not applicable with respect to the extra cost of dewatering.

Before resolving the issue of whether the unit-price provision or Article 15 controls, we deem it advisable to consider two contentions advanced by the city as to why Article 15 should not confer any cause of action upon the contractor to recover its extra cost of dewatering.

The first of such contentions is that such a provision as Article 15 violates the statutes governing the letting of public contracts. However, the past decisions of this court make it clear that changes made after the letting of a public contract, which alter the manner of construction but do not substantially change the character of the building or unreasonably increase its costs, and are made pursuant to a provision in the contract permitting such changes, legally may be made without pursuing the statutory steps required to be taken before the letting of the original contract. Pung v. Derse (1917), 165 Wis. 342, 162 N.W. 177; First Savings Trust Co. v. Milwaukee County (1914), 158 Wis. 207, 148 N.W. 22, 148 N.W. 1093; and Mueller v. Ea Claire County (1900), 108 Wis. 304, 84 N.W. 430. Under these authorities we deem Article 15 to be a legal provision to include in a public contract. The case of Probst v. Menasha (1944), 245 Wis. 90, 13 N.W.2d 504, is not in point because the public contract there before the court did not contain any provision authorizing the city to make changes.

The second contention advanced by the city as to why the plaintiff contractor cannot ground his cause of action for additional compensation upon Article 15, even in the absence of the unit-price provision, is because the contract imposed upon the contractor the duty to make his own investigation of underground conditions before submitting its bid. However, the plans contained an express representation that soil which could sustain 6,000 pounds' pressure was to be found at the indicated depth of the bottom of the footings, such indicated depth being the elevation 1,157' above sea level. The architect testified that the only way one could have determined the exact depth at which soil could be found for each footing, which would bear the required weight, would have been to excavate the entire foundation. In situations like this a contractor bidding on a public-work project has the right to rely on the express representation contained in the plans even in the presence of a contract clause similar to the one in the instant contract, which places a duty of investigation upon the contractor. United States v. Spearin (1918), 248 U.S. 132, 39 Sup. Ct. 59, 63 L.Ed. 166; Christie v. United States (1915), 237 U.S. 234, 35 Sup. Ct. 565, 59 L.Ed. 933; Pitt Const. Co. v. Alliance (6th Cir. 1926), 12 F.2d 28; and Hersey Gravel Co. v. State Highway Dept. (1943), 305 Mich. 333, 9 N.W.2d 567, 173 A.L.R. 302. See also 43 Am. Jur., Public Works and Contracts, pp. 852, 853, sec. 111.

If the unit-price provision is applicable so as to include the plaintiff contractor's added expense for the dewatering to which it was put by the change order of the architect directing the material deepening of the footings, such provision must prevail over the provisions of Article 15. This is because the unit-price provision is a specific provision, while Article 15 is included in the A. I. A. general provisions of the contract. Where there is an inconsistency between a specific provision and a general provision, the specific provision controls. Restatement, I Contracts, pp. 327, 328, sec. 236 (c); Milwaukee County v. H. Neidner Co. (1936), 220 Wis. 185, 203, 263 N.W. 468, 265 N.W. 226, 266 N.W. 238.

The crucial question is whether the unit-price provision covers the item of the dewatering expense to which the contractor was put as a result of the architect's change order deepening the footings. It is a question which has caused us no little difficulty to decide. Mr. Abbott, an officer of the plaintiff corporation, is a graduate civil engineer and licensed by the state to practice engineering, who has had many years of extensive experience in building construction work. He testified that unit-price provisions in building contracts are to cover additional work, or less work, of the same nature involved in the contract. Likewise, Mr. Schoepke, the architect, also testified that unit prices for extras by the general custom of the construction trade are not to be applied to work of a nature that is considerably different from the general plan or which require different methods.

The admission of such testimony as to trade custom was proper because it did not vary the terms of the unit-price provision of the contract. Such provision required the contractor "to furnish any additional or less concrete as required, complete in place, including necessary excavation, . . ." It is physically possible to excavate and lay concrete below the top of the water table without dewatering, but concrete laid in water will be of inferior quality.

It is indisputable, if dewatering is required in order to lay concrete of proper quality, a different method is required than when no dewatering is necessary. However, the plaintiff contractor knew when it submitted its bid that the bottoms of the footings, as shown in the plans, were six inches below the water-table level. Because of this the plaintiff included in its cost estimate, upon which it based its bid, an item of $1,700 to cover the cost of dewatering to a depth of six inches below the bottoms of the footings. Therefore, the fact that a change order was subsequently issued by the architect, which required laying the footings at a greater depth, did not require the employment of any different method of construction.

While we are satisfied that the plaintiff contractor did not include any item of dewatering in its unit-price bid of $74 per cubic yard for laying additional concrete, we are compelled to hold that the unit-price provision of the contract controls, and not Article 15. Therefore, the plaintiff is not entitled to recover its extra cost due to the additional dewatering required to extend the footings to the depth called for by the change order.

The plaintiff's brief places great reliance upon the case of Gerhardt F. Meyne Co. v. United States (1948), 76 F. Supp. 811, decided by the United States court of claims. In that case the unit-price provision of the contract was expressly qualified so as to render it inapplicable if the changes made required the use of different materials or methods. The plans showed no concrete foundations more than one foot above ground. Changes were made increasing the height to as much as 11 feet. As a result the contractor was required to have more and stronger forms, and had to erect a scaffold from which to pour the concrete into the forms. The court held the unit-price provision inapplicable because different methods of construction had to be employed by the contractor. The instant case is distinguishable for the reason before pointed out, that the plaintiff contractor was not required to use any different method of construction.

By the Court. — Judgment affirmed.