Shipman vs. The State. 39 of 1870); that this only empowered them to procure such plans and specifications as would answer the purpose for which they were designed, and from which could be built a hospital for the insane at least equal to the one then existing at Madison; that they had no power to bind the state to pay for worthless or defective plans and specifications, or those which would not answer the purpose, or for which a hospital of the character just described could not be erected (Mayor, etc., of Baltimore v. Reynolds, 20 Md., 1; Bowman v. De Peyster, 2 Daly, 203; Floyd Acceptances, 7 Wall., 666; 1 Parsons on Con. (6th ed.), 125; Story on Agency, 307 a); that the rule that where a thing is ordered for a special purpose, and is supplied and sold for the purpose, there is an implied warranty that it is fit for that purpose (1 Parsons, 586, 588, and cases there cited), is applicable to such a case; that the statute itself required the heating apparatus for the proposed hospital to be "suitable apparatus," and the commissioners had no power to authorize any other to be procured or put into the building, while the proposed answer alleged that the plaintiff, as superintendent, procured to be put into the building heating apparatus that was grossly defective and practically worthless, and which had to be removed at great expense to the state; that other defects in the building are alleged to have been caused by plaintiff's negligent and unfaithful execution of the plans and specifications, and some of them not to have been discovered until long after his discharge; and that the defense and counterclaims based on these facts have never been waived by the state. Wm. F. Vilas, contra. RYAN, C. J. After issue in this cause had been sent down for trial, the attorney general procured the return of the record by stipulation; and moves for leave to file seven amended answers, three of them in the way of counter claim. The original answer admits the contract set up in the com Shipman vs. The State. plaint between the plaintiff and the building commissioners; admits the plaintiff's presentation of his claim to the legislature, and their refusal to allow it; and denies every other averment of the complaint. The first amended answer again admits the contract, but denies the plaintiff's performance of it. This is covered by the general denial, and is unnecessary. It admits the discharge of the plaintiff by the building commissioners, but traverses the reasons for it assigned in the complaint. It was held on the demurrer that the commissioners always had absolute right to discharge the plaintiff, with or without reason. The reason is therefore immaterial, and on that ground an averment of it was stricken out of the original answer. And so all the averments of the first amended answer are immaterial or redundant. The second amended answer pleads only the plaintiff's discharge and the reasons for it, and is immaterial. The third amended answer pleads generally payment of the plaintiff for all services up to the time of his discharge, and specially that he was paid five per cent. on the cost of the entire building except the south wing. These averments do not appear quite consistent, in view of the judgment on the demurrer, that the plaintiff, if entitled to recover, would be entitled to quantum valebat for his plan of the south wing, in addition to five per cent. on the cost of the building of which he superintended the construction. It is difficult to say whether or not the averment is intended to cover the plans of the entire building. If not, it still appears uncertain and evasive. The complaint pleads the cost of the building superintended by the plaintiff, and admits payments of less than five per cent. on the amount. A plea of payment, in excess of the payment admitted in the complaint, would be good. Martin v. Pugh, 23 Wis., 184. An answer of payment, partial or total, should plead the amount paid; and especially in a case like this, where the amount payable is dependent on another amount also VOL. XLIII-25 Shipman vs. The State. traversable. It is impossible to tell here whether the averment goes upon a less cost of the building or a greater payment to the plaintiff. If the original answer had contained an averment so framed, the court would have granted a motion of the plaintiff to make it more definite and certain. And it would be improper to allow so ambiguous an issue by way of amendment. Indeed, as there is a subsequent averment in this answer attacking the value of the plaintiff's plan of the building, it may be that the general averment of payment is intended to go upon a quantum meruit for all the plaintiff's services. But this answer is not confined to payment. It proceeds, in not very apparent connection, to aver that the plaintiff did not superintend the construction of the south wing, which is admitted in the complaint; that he did not furnish working drawings or specifications, but only a general plan of the south wing, an averment unnecessary with the general denial; that the general plan of the south wing was a duplicate of the general plan of the north wing, and became the property of the state in 1870, manifestly immaterial; that the building constructed on the plaintiff's plan was not as represented by the plaintiff, and did not answer the purpose for which it was constructed; and that therefore the plaintiff's general plan for the south wing was worthless, and only partially used. So far as these averments bear on the quantum valebat of the plan of the south wing, that is, on the amount of the plaintiff's damages, they are, of course, unnecessary. So far as they bear on the plaintiff's responsibility for his plans, their materiality will be more conveniently considered later. It is sufficient to say here that the third amended answer properly raises no material issue. The fourth amended answer denies that the state has ever refused to pay the plaintiff his just claim, if any. The complaint avers, and the original answer admits, the presentation of the plaintiff's claim to the legislature and the refusal of that body to allow it. This answer does not imply a traverse of Shipman vs. The State. the averment in the complaint, and has the appearance of an evasive play upon the word just. If intended as a traverse of presentation to and refusal by the legislature, it is insufficient, being neither direct nor certain. The answer proceeds to aver the willingness of the board of trustees to settle with the plaintiff; the plaintiff's refusal to appear before them for that purpose, and his failure to demand payment of them; denies their refusal to pay him; avers their performance of the contract; and denies waiver on their part of performance by the plaintiff. All this seems to go upon a misconstruction of the statute governing actions against the state in this court; appearing to substitute the board of trustees for the legislature. This answer presents no material issue. The fifth amended answer is by way of counter claim. It states at the outset that by the plaintiff's contract he agreed to furnish to the board of building commissioners correct and accurate estimates of materials put in the building by the contractors. This was probably intended as a construction of the superintendent's duty under sec. 9, ch. 39 of 1870, and is not a correct one. The pleading then avers that the plaintiff's specifications required a certain number of feet of iron coil to be placed in the north wing of the building; that the plaintiff negligently certified to the building commissioners that the required quantity of coil had been put in, and that the commissioners, relying on his certificate, paid for it; that in fact a less quantity of coil had been put in; that it was the plaintiff's duty under his contract to know the quantity actually put in; that the commissioners did not and could not then know the fact; and that it came to their knowledge after the plaintiff's discharge. Probably the building commissioners might have required the plaintiff, upon completion of the building, to inspect all its details, and to report to them whether or not they complied with the contract. In that case, however, there is nothing in the statute to warrant the commissioners to accept the super Shipman vs. The State. intendent's report as conclusive, or to discharge them from their duty to the state. Even the monthly estimates of the superintendent are subject to the examination and approval of the commissioners. The statute is silent upon any duty of the superintendent upon the final completion of the building. It provides only that the commissioners shall certify the amount due to the contractor, including the reserved percentage. This made it the duty of the commissioners to see that the building was completed according to the builder's contract. The commissioners might have required the plaintiff's aid in the performance of this duty. But they could not devolve this or any other of their duties on their superintendent alone. They owed an active duty to the state throughout, in procuring a proper plan, in appointing a competent superintendent, in making a proper building contract, and in procuring the proper completion of the building. The employment of the plaintiff did not fulfill all these duties or discharge the commissioners from them. They might undoubtedly cali to their aid throughout the skill of the superintendent as an architect, but they could not constitute him sole building commissioner in their stead. The statute requires them to employ a competent superintendent; makes him, so to speak, the servant of the commissioners; makes the commissioners, so to speak, the superintendents of the superintendent, with power to discharge him, and accountable to the state for his competence in the discharge of his duty. If the commissioners assumed, as both arguments of this cause indicate, that, the contract with the plaintiff once made, they had no responsibility for the sufficiency of the plan or for the completion of the building in compliance with it; that they could devolve all the responsibility on the plaintiff, and look securely and passively on; they sorely mistook their duty. But here is no averment that the commissioners imposed any duty upon the plaintiff, to aid them in their action upon the completion of the building. Though the answer is very |