Town of Beloit v. Heineman

Dodge, J. Tbe contention of respondent, made as demurrer ore terms, which prevailed with tbe trial court, that this action must be dismissed because it did not affirmatively appear tbat tbe electors in town meeting had authorized tbe commencement of this action, came altogether too late. Tbe cause of action presented was on contract to recover tbat which tbe defendant had promised to pay for tbe use of tbe town’s property. It was entirely a common-law cause of action, upon which tbe town, under its general corporate powers to sue and be sued, could maintain action except for some statutory limitation. I'f it be true, as argued, tbat a vote of tbe electors was a necessary preliminary to tbe bringing of a suit, an ob [401] jection to tbe action on that ground went wholly in abatement. It did not deny tbe indebtedness of tbe defendant to tbe town nor existence of tbe cause of action, but raised an obstacle wbicb, until removed, postponed tbe right to commence tbe suit. This is distinctively matter in abatement, and, unless expressly pleaded, is waived. Milwaukee Co. v. Hackett, 21 Wis. 613; Johannes v. Youngs, 48 Wis. 101, 4 N. W. 32; Milwaukee v. Herman Zoehrlaut L. Co. 114 Wis. 276, 90 N. W. 187; Bunker v. Hudson, 122 Wis. 43, 53, 99 N. W. 448. Tbe further objection wbicb was not passed on by the trial court, that there was neither allegation nor record proof of formal resolution by the town board to institute the action, is exactly of tbe same character and ruled by tbe same considerations. Another contention, not reached by tbe trial court, is that a contract to lease to defendant tbe stone crasher was beyond tbe corporate power of the town, and that, even if within such power, it was not within the powers delegated by law to tbe town board or any member or members thereof. Whatever limitations may have existed on tbe power of tbe town or on the town board or its officers to confer upon an individual tbe right to use such machine, they are entirely immaterial to tbe defendant, who has actually enjoyed that privilege under an attempted contract. No limitation rested upon his ability or power to agree to pay for such use, and be, having received all the benefits of such a contract as if it were valid, cannot now question its validity in order to repudiate bis agreement to pay a price for that which be has received. Farmers’ & M. Bank v. Detroit & M. R. Co. 17 Wis. 372; Bullen v. Milwaukee T. Co. 109 Wis. 41, 44, 85 N. W. 115; Security Nat. Bank v. St. Croix P. Co. 117 Wis. 211, 94 N. W. 74; Madison v. American S. E. Co. 118 Wis. 480, 95 N. W. 1097. These views, resulting, as they do, in a legal liability of tbe defendant to respond for tbe price be agreed to pay for tbe use of this machine wbicb be has bad, render immaterial nu [402] merous other questions argued by counsel, sucb, for example, as whether the town board can institute a suit of this character without the vote of the electors, whether their decision so to do must be matter of record and proved by the record, whether it is to be presumed in absence of evidence, and whether either the town or its officers can rent such a machine. The remaining’ question is whether a new trial is necessary, or whether, upon the facts found by the jury, judgment should have been entered in favor of the plaintiff. The verdict finds that in April, 1903, defendant promised to pay $4 a day for the use of the machine. Indeed, the answer so admits. Defendant’s foreman himself testified that he used it eighteen days, which, at $4 per day, amounted to $12. Hence the ■per diem rental to that amount was undisputed. As to the defendant’s liability for repairs, we confess there is some confusion upon the face of the verdict, which finds, first, that damage costing $263.85 to repair was proximately caused by a defect in the crusher, for which it might be argued defendant was not responsible, and then finds that exactly the same amount was required to repair damages caused by defendant’s carelessness and negligence while using the machine, thus at least suggesting a doubt whether the jury had not found that the same injury was proximately caused by the ancient defect in the machine and also was caused by carelessness or negligence of the defendant, upon which view respondent insists the verdict is inconsistent. Nevertheless, by the tenth question, the jury also found that a new agreement was made by the defendant that, in consideration of being permitted to complete his work with the crusher, he would pay all expenses of putting it in best possible condition and entirely satisfactory to the plaintiff. There was evidence to support this finding, to the effect that about May 1, 1903, such agreement was made. Upon this last contract defendant’s liability for such necessary expenses was complete, irrespective of whether they had been rendered necessary by an original defect in the ma [403] chine or by bis mismanagement of it. The amount of the repairs so rendered necessary is again found to be $263.85, and is supported by the evidence, but not by the allegations of the complaint, 'which assert only expense to the amount of $253.10. It cannot be said that the evidence establishing .the larger amount was so admitted ■without objection as to justify us in treating the complaint as amended, and judgment upon the verdict must, therefore, be limited to the amount prayed in the complaint, together with interest from the date of the commencement of this suit. By the Court. — Judgment is reversed, and cause remanded with directions to enter judgment in favor of the plaintiff for the sum of $325.10 and interest from date of commencing suit, and for costs.