This appeal is from a summary judgment entered by the circuit court for Winnebago county, on February 11, 1939, in favor of plaintiff-respondent against defendant city, for the sum of $1,914.43 damages and costs, from which judgment the city of Oshkosh appeals.
The complaint contains two causes of action. With reference to the first, the court found that on April 27, 1936, plaintiff and defendant entered into a written contract for the construction of a certain interceptor known as "North Bank Interceptor" in connection with the construction of an intercepting sewer system for the city of Oshkosh. Plaintiff agreed to furnish all labor and material and to perform the work necessary for the construction of said North Bank interceptor in accordance with the plans and specifications and with the proposal of the plaintiff, all of which were made a part of the contract, for the sum of $59,114.10, same being based on certain unit prices set forth in the proposal and contract. Plaintiff's proposal for the construction of said North Bank Interceptor provides "that plaintiff shall furnish, among other things, one hundred twenty (120) days of pumping out accumulating waste and water at the low end of the sewer not to exceed one hundred fifty (150) gallons per minute, as based on the engineer's estimate of quantities, at the unit price of twelve dollars ($12) per day." The contract further provides that the contractor shall assume the responsibility of removing the accumulating waste and water at the low point and shall be paid in accordance with his proposal.
Pursuant thereto, plaintiff, at the direction of Robert Frazier, the duly authorized representative of Robert Cramer Sons, consulting engineers, which firm was at all times mentioned the consulting engineer and agent of defendant, commenced pumping out the accumulating waste and water at *Page 276 the low end of the sewer of the North Bank Interceptor on June 19, 1936, and continued pumping daily pursuant to the instructions, demands, and requests of said engineer until February 1, 1937, at which time it was ordered by said engineer to discontinue said pumping. Pursuant thereto, plaintiff became entitled to payment for two hundred twenty-six days of pumping at the rate of $12 per day, a total of $2,712.
Plaintiff duly completed all of its work under said contract, which has been accepted, and has duly presented a properly executed and verified voucher therefor to defendant. Thereafter, on or about July 19, 1937, and within six months from the date of the commencement of this action, the city council of the city of Oshkosh, by resolution, disallowed payment of all but $1,440 thereof. There is now due and owing plaintiff from said city (on the first cause of action) the sum of $1,272, plus interest at six per cent per annum from July 19, 1937, in all, the sum of $1,391.60.
On the plaintiff's second cause of action, the court found that on April 27, 1936, plaintiff and defendant entered into a written contract for the construction of a certain interceptor, known as the "High Street Interceptor," in connection with the construction of an intercepting sewer system for the city of Oshkosh. Plaintiff agreed to furnish all labor and material and to perform the work necessary for the construction of said High Street Interceptor in accordance with the plans and specifications and with the proposal of the plaintiff, all of which were made a part of the contract, for the sum of $72,862, same being based on certain unit prices set forth in the proposal and contract. Plaintiff's proposal for the construction of said interceptor provides that plaintiff shall furnish, among other things, ninety days of pumping out accumulating waste and water at the sump at the low end of the sewer not to exceed one hundred gallons per minute, based upon the engineer's estimate of quantities, at the unit price of $15 per day. *Page 277
Plaintiff, at the direction of Robert Frazier, the duly authorized representative of Robert Cramer Sons, consulting engineers, which firm was at all times mentioned consulting engineer and agent of defendant, commenced pumping out the accumulating waste and water at the sump at the low end of the sewer of said High Street Interceptor on September 22, 1936, and continued said pumping daily pursuant to the instructions of said engineer until February 1, 1937, at which time it was ordered by said engineer to discontinue said pumping. The specifications and contract further provide that the contractor shall assume the responsibility of removing the accumulating waste and water at the low point and shall be paid in accordance with his proposal. Plaintiff became entitled to payment for one hundred thirty-one days of pumping on said interceptor at the rate of $15 per day, a total of $1,965.
Plaintiff duly completed all of its work under said contract which has been duly accepted, and has presented a properly executed and duly verified voucher therefor to defendant. Thereafter, and on or about September 20, 1937, and within six months from the day of the commencement of this action, the city council of the city of Oshkosh, by resolution, disallowed payment of all but $1,605 thereof. There is now due and owing plaintiff on said contract the sum of $360, with interest at the rate of six per cent per annum from September 20, 1937, a total of $390.12.
The court further found "that upon completion of the laying of the sewers, drains and water pipes on the North Bank Interceptor project the supervising engineer, by verbal order, attempted to require plaintiff to do all of the pumping of accumulating waste and water under both contracts andreceive payment under the contract for the construction ofthe High Street Interceptor alone."
As conclusions of law, the court found that the engineer did not and does not have the power to alter the terms of *Page 278 said contracts as attempted; that defendant is indebted to plaintiff on the contract for the construction of the North Bank Interceptor, as set forth in the first cause of action, in the sum of $1,391.60; and that defendant is indebted to plaintiff on the contract for the construction of the High Street Interceptor, as set forth in the second cause of action, in the sum of $390.12. Judgment was accordingly entered. From the foregoing findings, it appears that respondent company on April 27, 1936, entered into separate contracts, in writing, with the appellant city for the construction of what is known as the "North Bank Interceptor" and the "High Street Interceptor," both being in connection with the construction of an intercepting sewer system for the city of Oshkosh. The matter in dispute relates only to the amount due respondent company for the pumping of the accumulating waste and water out of the sewer in connection with the construction of the two interceptors.
There is no dispute as to the terms of the contracts between the parties concerning compensation to be paid respondent company for the pumping. Nor is there any dispute as to the number of days respondent was actually engaged in pumping during the construction of the two interceptors. The contracts required respondent to keep the sump free from accumulating waste and water, for which work respondent was to be paid on the basis of $12 per day on the North Bank Interceptor and on the basis of $15 per day on the High Street Interceptor. These prices call for the pumping of not to exceed one hundred fifty gallons per minute on the North Bank Interceptor and not to exceed one hundred gallons per minute on the High Street Interceptor. The estimated number of days for pumping on the North *Page 279 Bank Interceptor was one hundred twenty days and on the High Street Interceptor ninety days. The contracts provide for the collection of wastes from each interceptor in a sump and require the contractor, respondent, to keep the sump free from the accumulation of such waste by pumping.
It is conceded that the number of days referred to in the contracts were only estimates. It is further conceded that respondent is entitled to be paid for the number of days of pumping actually necessary under its contracts. It further appears that when one interceptor was completed the supervising engineer by verbal order attempted to require the contractor to do all of the pumping under one contract. The contracts are in writing and clearly the engineer had no power to alter the terms of the written contracts; that could only be accomplished by mutual consent.
We have carefully examined both contracts and all of the documents which by reference are made a part of each contract. No claim is made that the contracts were in any respect changed or modified by mutual consent of the parties. We fail to find any issue for trial other than an interpretation of the contracts. Respondent's claims are not for "extras." They are based strictly on and in accordance with the terms of the written contracts.
There being no issue of fact for trial, we are of the opinion that the court properly entered the summary judgment.
By the Court. — Judgment affirmed. *Page 280