Appleton Water Works Co. v. City of Appleton

Bakstes, J. Considerable discussion is devoted to the proposition that the mandate of this court expressly prohibited the entry of any judgment for interest. If the former judgment of the court passed upon that question adversely to the plaintiff, it is not now subject to correction, even if the conclusion were conceded to be erroneous. Everett v. Gores, 92 Wis. 527, 66 N. W. 616; Ledebuhr v. Wis. T. Co. 115 Wis. 214, 91 N. W. 1012; Hocks v. Sprangers, 113 Wis. 123. 136, 87 N. W. 1101, 89 N. W. 113. We do not con399 atrue the decision ox mandate of the court as foreclosing the plaintiff on this question. The plaintiff: was simply relegated to its rights under the contract. The city was “contending that it is liable only for the amount stipulated in the contract of November 4, 1881.” Judgment was authorized “in plaintiff’s favor for the several months’ service for which this action is brought, based upon and measured by the provisions and terms of the. contract of November 4, 1881,” less offsets, and judgment was ordered in favor of the plaintiff “in accordance with this opinion.” 132 Wis. 575, 113 N. W. 49. It was clearly the purpose of the court to give such judgment to the plaintiff as it was entitled to upon the established facts under the contract in question. If that contract and the subsequent action- of the parties entitled the plaintiff to interest, then there is nothing in the former decision which precludes a recovery of such interest. If plaintiff is not entitled to recover interest under the contract and the acts of the parties in reference thereto, then there is nothing in the judgment or decision of this court which confers upon the plaintiff a right to such interest. Neither are we disposed to follow those cases which hold that a municipal corporation is not liable for interest on an indebtedness due from it in the absence of an express promise to pay. If the question is an open one in this state at all, no good reason is apparent why, after a claim is properly presented to a municipal corporation and payment is duly demanded, such claim should not -draw interest if interest would be allowable on a like claim against an individual. This statement has, of course, no reference to statutory provisions exempting municipalities from the payment of interest on certain kinds of indebtedness. One of the substantial contentions of the appellant is that the claim of the plaintiff did not begin to draw interest until after a demand for payment was made, and that no such demand was made in this case as would entitle the plaintiff to [400] interest. The consolidated claims were not founded on express contract, but were based on an implied obligation to-pay wbat tbe services were reasonably worth. Nothing was due on tbe express contract until August 1, 1904, yet claims aggregating $6,000 were filed before that time. Nothing' was due on account of tbe services rendered for August, September, and October, 1904, until February 1, 1905, yet long-prior to that time appeals bad been taken from tbe action of tbe common council of tbe city of Appleton on bills rendered-for those months, and the causes bad been noticed for trial. This court permitted a recovery on an express contract where-suit was brought on an implied one, not because tbe plaintiff was strictly entitled to such judgment on tbe issues raised,, but because tbe indebtedness on tbe express contract was admitted and no good reason was apparent why tbe litigation should not be brought to a close. Tbe time of payment for tbe service rendered, as well as the amount of it, was definitely fixed by tbe contract. If private individuals were involved, no demand for payment would have been necessary to start tbe running of interest. With municipal corporations tbe rule is different, in some jurisdictions at least, and a demand of payment is held necessary to create a default on tbe part of such corporations so as to set interest running. Tbe principle upon which' this distinction rests is that tbe law does not contemplate that a public officer shall leave bis office and search out tbe creditor and tender him in currency or otherwise tbe amount of bis bill. Tbe number of bills paid by a city in tbe course of a year is-large, and, if tbe treasurer were obliged to search out each-claimant and pay him wbat was due him, an ouerous burden would be imposed upon such officer. Tbe universal practice-is for the creditor to seek bis debtor and demand payment of tbe obligation when that debtor is a municipal corporation. We think it is tbe duty of the creditor to make such demand,, and that until it is made tbe municipality is not in default. [401] This view of the law is supported by the following decisions: Donnelly v. Brooklyn, 7 N. Y. Supp. 49, affirmed S. C. 121 N. Y. 9, 24 N. E. 17; Taylor v. Mayor, 67 N. Y. 87, 94; O'Keeffe v. New York, 176 N. Y. 297, 298, 68 N. E. 588; Boott Cotton Mills v. Lowell, 159 Mass. 383, 34 N. E. 367; O'Herrin v. Milwaukee Co. 67 Wis. 142, 30 N. W. 239. Besides, the charter of the city of Appleton provided (sec. 25, subch. Y, ch. 47, Laws of 187 6; sec. 24, subch. Y, ch. 441, Laws of 1885) that “no action shall be maintained . . . against the city, upon any claims or demands of any kind whatsoever, whether arising from contract or otherwise, until such person shall have first presented such claim or demand, duly verified under oath, to the common council for allowance.” Other charter provisions required the audit of such claims and their allowance by the common council before any order should be drawn in payment thereof. These provisions required the presentation of the plaintiff’s claim for hydrant rental before any action could he begun to recover the same. Oshkosh W. W. Co. v. Oshkosh, 106 Wis. 83, 81 N. W. 1040; Vogel v. Antigo, 81 Wis. 642, 645, 51 N. W. 1008; Fleming v. Appleton, 55 Wis. 90, 12 N. W. 462; O'Donnell v. New London, 113 Wis. 292, 296, 89 N. W. 511; Morrison v. Fan Olaire, 115 Wis. 538, 541, 92 N. W. 280; Bunker v. Hudson, 122 Wis. 43, 50, 99 N. W. 448. In this case the plaintiff did not make any demand under the contract which was held to be in force. It was entitled to six months’ rental on August 1, 1904, and to a like amount on February 1, 1905. It asserted that the contract was no longer in force, and that it was entitled to monthly payments, based upon an implied obligation to pay what the services were worth, instead of on an express contract under which it was entitled to semi-annual payments. It claimed nearly $300 per month more than it was entitled to receive. The city might well have disallowed the bills and stopped there. Plaintiff never evinced any intention to accept or [402] receive the amount legally due it. Its action on the consolidated claims might well have been dismissed, in which event it would have been required to make a new demand based on its contract. It would not be entitled to interest until such demand was made. It was not the intention of this court, either express or implied, to give any undue advantage to the plaintiff by directing judgment in its favor in this case. The testimony shows that the defendant stood ready and willing, at any time a demand was made upon it under the terms of the contract, to pay on that basis. The fact that its allowances fell short by $1.32 of the amounts that would be due for eight months’ rental upon the contract basis was in all probability due to the fact that the plaintiff filed its February bill, presumably on the contract basis, for $1,019, instead of $l,019.16f. The additional allowance of sixteen and two-thirds cents per' month would undoubtedly have been made if the plaintiff had asked for it. Erom an equitable standpoint the plaintiff was not injured by the failure of the city to include this sixteen and two-thirds cents per month in its offer to pay. The plaintiff might have taken $1,219 on account of August early in September, $1,219 for September early in October, and $1,219 for October early in November. It was not entitled to any of these amounts until the following February. Had it accepted the offer of payment made, it would have had the use of these supis for several months, which, if placed at interest, would have amounted to much more than $1.32. In any event the record clearly shows that defendant was ready and willing to pay upon the basis of the contract as soon as anything became due thereon at any time the plaintiff was willing to take what it was entitled to. We conclude that a demand was necessary, and that no such demand was made in this case as'would start the running of interest on the sum for which judgment was ordered. Furthermore, the city was relieved from making any al [403] lowance or offer of payment On tlie basis of the contract held to be in force. On Eebruary 20, 1904, the plaintiff repudiated the obligations of its contract and stated that in lieu thereof it would furnish water at a materially increased rate, and that it would exact monthly payments for the service it rendered. This notice advised the city that monthly payments of $1,500 would be received in payment for the water used by it, and nothing less. Under this declaration an offer of a less amount would be wholly unavailing. Interest to the amount of $693.02 was erroneously allowed in the judgment appealed from. The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in favor of the plaintiff and against the defendant for $3,607.58. By the Court. — It is so ordered.