Lawrence v. City of Milwaukee

LyoN, J. The complaint states no cause of action quantum meruit for the materials furnished and labor performed by Martin. The value thereof is not alleged. Hence this action is upon the contract to deliver to Martin the certificates against Warner’s lots, and upon that alone. If that contract is void, or if the plaintiff is estopped by reason of the judg [309] ment in Warner’s suit to assert its validity in this action, it is manifest that this action upon the contract cannot be maintained. It is unnecessary to determine on this appeal whether the act of 1875 (and consequently the contract made under it) is valid or invalid, and that question will not be considered. The effect of the judgment in Warner’s suit will alone be determined. A question of fact once determined by a competent court is at rest between the same parties, and neither party can thereafter be heard to deny the correctness of the adjudication in a collateral action or proceeding. Van Valkenburgh v. Milwaukee, 43 Wis., 574. A judgment is conclusive upon the parties thereto, only in respect to the grounds covered by it and the law and the facts necessary to uphold it. Lathrop v. Knapp, 37 Wis., 307, and cases cited by the chief justice at p. 314. But to that extent it is conclusive upon the parties, as respects both the law and the facts. And these rules extend to and include persons in privity with the parties, though not parties on the record. The plaintiff is in privity with Martin, and equally with him is bound by the adjudication of the county court in Warner’s suit. The result of the conclusions of law in that suit is, that the contract is void; for it was there determined that the city had no authority to enter into it. We think this determination was necessary to uphold the judgment; and hence, within the rules above stated, the plaintiff cannot be heard in this action to asserj; that the contract is valid. If, however, the judgment be regarded merely as a determination that the portion of the contract which provides for issuing certificates against lots for one-third of the cost of the improvement, is void, the result is the same. That portion of the contract could be void only upon the ground that the corresponding provision in the act of 1875 is void. It is the law of this state that when the void parts of a statute were evidently designed as compensation for, or inducements to, the other portions thereof, so that the whole considered together [310] warrant the belief that the legislature would not have passed the remaining portions alone, the whole statute is inoperative. Slauson v. Racine, 13 Wis., 398; State ex rel. Walsh v. Dousman, 28 id., 541. It requires no argument to show the improbability of the passage of the act of 1875 with the provision for paying one-third of the cost of the improvements which it authorized, eliminated therefrom. It necessarily follows that an adjudication declaring void the portion of the act under consideration is an adjudication that the whole act, and any contract entered into under it, is inoperative and void. ¥e are unable to take any view of the case which will sustain an action by the plaintiff against the city upon this void contract. Counsel for the plaintiff argued that, although the contract is void, the plaintiff may still recover on a quantum meruit any unpaid balance for the materials and work; and he cited many authorities to support his position. "We are inclined to agree with him, but the question is not here on this appeal, and we leave it undetermined. If the plaintiff desires to test his right of recovery in that form of action, the county court will probably permit him to amend his complaint by inserting therein the proper averments.