LEDGES CONSTRUCTION CO. v. BUTLER, 42 Wis.2d 227 (1969)

166 N.W.2d 202

Supreme Court of Wisconsin.
No. 187.Argued March 5, 1969. —
Decided April 1, 1969.

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APPEAL from an order of the circuit court for Waukesha county: CLAIR VOSS, Circuit Judge. Affirmed.

This is an action by plaintiff Ledges Construction Company, Inc., against the defendant village of Butler to recover $18,982.01, alleged to be due for materials and services furnished under a written construction contract.

The plaintiff is a Wisconsin corporation engaged in the construction business. The defendant is a municipal corporation.

In early 1965, the defendant desired that certain construction work be done on its water system. Accordingly, it advertised for bids to project No. W-3-3-64, contract “C,” which called for the installation of a water main. The deadline for receiving bids was March 2, 1965. On June 7, 1965, the village board of Butler awarded contract “C” to Volpano Sawyer. The contract was executed on August 3, 1965.

It is undisputed that the plaintiff did substantial work pursuant to contract “C.” All progress payments under the contract were made to Volpano Sawyer. On May 2, 1967, the defendant made its final payment to Volpano Sawyer for work performed under contract “C.”

On March 19, 1968, a summons and complaint were served on the defendant, thereby commencing this action. The complaint alleges in pertinent provisions:

“3. That the plaintiff performed services for the Village of Butler pursuant to Contract “C” under project No. W-3-3-64.

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“4. That there remains due and unpaid to the plaintiff, pursuant to said performance the sum of Thirteen Thousand Four Hundred, Eighty-Two Dollars and One Cent ($13,482.01).

“5. That the plaintiff performed work in addition to that specified in said contract, which work was necessary and for the benefit of the Village and in furtherance of performance upon said contract for testing of installations, black top repair, machinery substitution and other additional work in the sum of Five Thousand Five Hundred Dollars ($5,500).

“6. That the Village has been benefited and enriched by the materials, services and other performance of the plaintiff to the extent of the demand of the Complaint.

“7. That plaintiff made demand upon the defendant pursuant to Sections 61.51 and 62.25(1) of the statutes of the State of Wisconsin and that such demand has been denied by the Village of Butler in writing dated December 21, 1967.”

The defendant answered the complaint on April 17, 1968, and alleged as an affirmative defense that the plaintiff was not a party to contract “C,” that contract “C” was between Volpano Sawyer and the defendant, and that Volpano Sawyer had been paid in full.

On June 11, 1968, the defendant moved for summary judgment. In support of its motion the defendant presented the following affidavits:

1. The affidavit of the clerk and treasurer of the village of Butler, Bertha M. McKinney, who is responsible for the letting of public contracts. The affidavit states that contract “C” was awarded to Volpano Sawyer and that Volpano Sawyer had been paid in full. Attached to the affidavit and incorporated therein is a certified copy of the excerpts of the minutes of the village board meeting at which contract “C” was awarded. Also included with the affidavit is a letter from the project engineer which approved the final payment to Volpano Sawyer for their work under contract “C.”

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2. The affidavit of William A. Stearns, an attorney the village of Butler. The affidavit states that the affiant personally delivered a village of Butler check to Christy Volpano as the final payment under contract “C.” Attached to the affidavit and incorporated therein is a document signed by Christy Volpano of Volpano
Sawyer which acknowledges the receipt of full and final payment for the work performed under contract “C.”

3. The affidavit of the president of the village of Butler, Leonard P. Liebl, which states that contract “C” was between the village of Butler and Volpano Sawyer. A copy of contract “C” is attached.

In opposition to the motion for summary judgment, the plaintiff submitted a copy of the adverse examination of John Mielke, an officer of Ruekert Mielke, Inc., the project engineer of W-3-3-64. At the examination, Mr. Mielke testified that plaintiff performed at least some of the work under contract “C,” but that he thought the plaintiff was a subcontractor. He further testified that he met with Christy Volpano of Volpano Sawyer and with Glen Bowman and Gordie Freeman, officers of the plaintiff corporation, before the village board prior to the time that contract “C” was let. There was also testimony that certain extra work was done in the project area which had not been specifically provided for in contract “C.”

Some other pertinent facts were brought forward in the examination of Mr. Mielke. The language of contract “C” obligates the defendant to pay $188,903.75. This sum was not paid because certain items were offset. The files of the village engineer contain direct correspondence with the plaintiff concerning the performance of obligations under contract “C.” A further discussion of this deposition will follow in the body of this opinion.

The trial court denied the motion for summary judgment on the ground that:

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“. . . substantial issues of fact are raised by the pleadings and evidentiary testimony of Mr. Mielke which require a trial of the issues for determination.”

The trial court never stated what the issues were.

Defendant appeals from the order.

For the appellant there were briefs by Quarles, Herriott, Clemons, Teschner Noelke, attorneys, an Laurence C. Hammond, Jr., and William A. Stearns of counsel, all of Milwaukee, and oral argument by Mr. Stearns.

For the respondent there was a brief by Hippenmeyer, Reilly, Fritz Arenz of Waukesha, and oral argument by Norman C. Fritz.

HANLEY, J.

The following issues are presented on this appeal:

(1) How many causes of action are stated in the complaint; and

(2) Is this a proper case for summary judgment?

The village contends on this appeal that its documentary evidence positively establishes that the plaintiff was not a party to contract “C.” Since the plaintiff’s claim was based on the contract, the action should be dismissed.

Plaintiff contends that the deposition clearly raises the factual question whether or not the plaintiff and defendant had a contract. Moreover, plaintiff contends that its pleading states a cause of action for unjust enrichment.

Causes of Action.
Plaintiff contends that the complaint states a cause of action for damages based on contract and a separate cause of action for unjust enrichment.

Sec. 263.04, Stats., provides:

“Uniting causes of action. The plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable

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or both. But the causes of action so united must affect all the parties to the action and not require different places of trial, and must be stated separately.” (Emphasis supplied.)

The complaint here does not designate separate causes of action. This is not a fatal defect.

“. . . We are not bound by the form of a pleading, but may consider the substance of the allegations thereof for the purpose of determining whether more than one cause of action is alleged therein.” Usow v. Usow (1933), 213 Wis. 395, 401, 251 N.W. 458. See also, Caygill v. Ipsen (1965), 27 Wis.2d 578, 135 N.W.2d 284.

The allegations of the complaint sufficiently plead a contract violation and a further claim (or an alternative claim) for damages based on unjust enrichment.

Applicability of Summary Judgment.
“The rule is well established in this state that when it is shown there is a substantial issue of fact, or when the evidence on a material issue is in conflict, or if the inferences to be drawn from credible evidence are doubtful and uncertain, the motion for summary judgment should be denied. . . . We have often said that the power of the courts under the summary-judgment statute. . . is drastic and should be exercised only when it is plain there is no substantial issue of fact or of permissible inference from undisputed facts to be tried.”Voysey v. Labisky (1960), 10 Wis.2d 274, 277, 278, 103 N.W.2d 9.

The more recent decisions of this court indicate a growing reluctance to overrule a trial court’s denial of summary judgment.

“. . . If the party opposing the motion for summary judgment submits sufficient facts which show there is a real controversy and takes the matter challenged by the motion out of the category of being a sham and unmeritorious suit or defense, that party is normally entitled to a trial on the merits.” Schuster v. Germantown Mut. Ins. Co. (1968), 40 Wis.2d 447, 452, 162 N.W.2d 129.

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“. . . A trial court need not decide a question of law on a motion for summary judgment under sec. 270.635, Stats., even though no conflict of material facts exist. There is no absolute right to summary judgment. . . .

“We think sec. 270.635, Stats., providing for summary judgment, does not confer a right to summary judgment but rather confers on the trial court a discretionary power to grant summary judgment when it believes summary disposition of a case is called for.” Zimmer v. Daun (1968), 40 Wis.2d 627, 630, 631, 162 N.W.2d 626.

Defendant contends that no material fact is in dispute. This contention is based on the premise that sec. 62.15,[1]
Stats., prohibits the plaintiff from becoming a party to contract “C.” It cannot be denied that contract “C” was originally let to Volpano Sawyer.

Sec. 62.15,, Stats., provides how public works contracts shall be let when the estimated cost of the construction exceeds $1,000. In applicable sections the statute requires the contractors to submit bids, and the village to let the contract to the lowest responsible bidder. The plaintiff never submitted a bid on contract “C.”

It is the defendant’s position that contract “C” was let to Volpano Sawyer, the lowest responsible bidder. If any other person later became a party to contract “C,” sec. 62.15, Stats., was violated, and the contract void.

It is apparently the plaintiff’s position that the project engineer felt that Volpano Sawyer was not a “responsible” bidder because it was too small to complete the job within the time limit. Thus the contract was assigned at the bidder price to plaintiff. There is no affidavit from the officers of plaintiff specifically alleging an

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assignment, but we believe the deposition of John Mielke and plaintiff’s brief fairly suggest this summary of its position.

During the deposition, Mr. Mielke read into the record portion of a letter he received from plaintiff’s counsel about October 20, 1967. That letter states:

“. . . This is to confirm our phone conversation of October 12 regarding Project No. W-3364 for water main installation.

“You advised you confirmed with Mrs. McKinney, the City Clerk, as to a Village Board meeting which took place in April or May of 1965 regarding the use and services of Ledges Construction Company Inc., as contractor on this job. This letter is intended to confirm that Ledges was approved by your firm as engineers on the job, but that no particular authorization was issued, and further, that the Board will generally act on a motion if a contractor is disapproved.”

The fatal flaw in plaintiff’s argument is that the meeting during April or May of 1965, which allegedly culminated in the assignment of contract “C” preceded
the actual awarding of the contract to Volpano Sawyer. That contract was not awarded until June 7, 1965, and the contract itself was not entered into until July 26, 1965. If the plaintiff’s allegation of assignment is taken as true, the only thing that could have been assigned was the bid. If the bid was assigned, plaintiff has not explained why the contract was awarded to Volpano Sawyer.

If the complaint merely alleged the cause of action based on the written contract, we would not hesitate to reverse the order of the trial court. However, we think there are some factual questions which need to be resolved under the second cause of action.

Sec. 62.15, Stats., only requires public works contracts which have an estimated cost in excess of $1,000 to be let by bid. Plaintiff alleges in its complaint a cause of action for “materials, services and other performance”

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outside of contract “C” which have benefited and enriched the defendant.

Plaintiff may be able to show that it provided certain services, materials or equipment to the defendant outside of contract “C” which may not be affected by the provisions of sec. 62.15, Stats. Where a municipality has authority to enter into a given contract, but procedural requirements are not followed, the municipality may be liable under the theory of unjust enrichment. See Ellerbe Co. v. Hudson (1957), 1 Wis.2d 148, 83 N.W.2d 700, 85 N.W.2d 663; Standard Oil Co. v. Clintonville
(1942), 240 Wis. 411, 3 N.W.2d 701; Shulse v. Mayville
(1937), 223 Wis. 624, 271 N.W. 643. This is not to suggest that the statutory requirement that a public construction contract be let to the lowest responsible bidder is a procedural requirement. It is established that a failure to do so renders the contract void. However, the “extra” services, materials or equipment provided by plaintiff may be capable of being reduced to a contract or contracts with estimated values below $1,000 each.

By the Court. — Order affirmed.

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