Welsh v. Town of Argyle

Cassoday, J. It does not appear that Eisher, who hired the team of the plaintiffs and was driving the same at the time of the accident, is a proper, much less a necessary, party to this action to recover damage to the property of the plaintiffs. Nor does it appear affirmatively from the complaint that he was guilty of contributory negligence. It is to be remembered that such negligence, when not disclosed by the complaint or testimony on the part of the plaintiff, is purely a matter of defense. Hath v. Peters, 55 Wis. 405; Hoye v. C. & N. W. R. Co. 67 Wis: 15; Gill v. Homrighausen, 79 Wis. 634. It is, .in effect, conceded that the notice of the defect of the highway, required by sec. 1339, R. S., is sufficiently alleged in the complaint. The same is true respecting the filing of the statement of the claim with the town clerk, to be laid before the town board of audit, as required by sec. 824, R. S. It is contended, however, that the com [312] plaint is defective because it fails to allege that the action was not commenced “until ten days after the next annual town meeting” held after such filing of the statement of such claim. True, we have frequently held that a complaint in such a case is fatally defective unless it alleges such filing of such statement as well as the giving of the notice of such defect. Benware v. Pine Valley, 53 Wis. 527; Chicago & N. W. R. Co. v. Langlade, 55 Wis. 117; Wentworth v. Summit, 60 Wis. 281. These rulings are upon the theory that such notice of defect and such filing of such statement are conditions precedent to the right to maintain the action. It is true the statute declares, in effect, that no such action “ shall be maintained ” unless such statement is so filed, “ nor until ten days after the next annual town meeting thereafter.” Sec. 824, R. S. Rut it will be observed that such notice of defect and such filing of such claim, are each affirmative acts on the part of the claimant for the benefit of the town, in order to bring home to its officials full knowledge of the claim made, so as to enable them to investigate the same and determine upon their line of conduct; whereas the time for holding such annual town meeting is a fact which everybody is bound to know, and hence to allege such delay of ten days thereafter would, in effect, be nothing more than to allege the time when the suit is commenced, — • a fact necessarily known to the defendant and appearing of record in the cause. Here it appears of record that this suit was commenced May 17,1892, which was more than a month after the holding of such next annual town meeting. To hold the complaint defective for not stating that fact would be too finical for the practical administration of the law. True, the cases cited by counsel, and others which might be cited, hold, in effect, that upon demurrer to a complaint for insufficiency all the facts constituting the cause of. action must appear upon the face of the complaint; and that the court will not ex [313] amine the record to find facts to help out'a defective complaint. But we are constrained to hold that the mere failure to state when the action was commenced is not a defect. Such allegation would not go to the cause of action, but at most would merely show whether the suit had or had not been prematurely commenced. This court has gone to-the extent of holding that a complaint alleging the sale and delivery of property by the plaintiff to the defendant at an agreed .price is sufficient, although it does not allege that no part of such purchase price has been paid. Rossiter v. Schultz, 62 Wis. 655. The allegations of the complaint as to the defect in the highway are unnecessarily prolix, repetitious, and confused, and more or less uncertain; but we think it states a good cause of action. Jung v. Stevens Point, 74 Wis. 547; Wiltse v. Tilden, 77 Wis. 152. By the Court.— The order of the circuit court is affirmed.