Forest County v. Shaw

Siebeckee, J. The complaint discloses that the pleader sought to charge that the defendant, as a member of the committee to negotiate for the sale of the county’s bonds, which had been issued by the county to enable it t'o secure the necessary financial means to construct a county court house, committed a wrong which caused the county pecuniary injury. The allegations of the complaint, though indefinite and general in essentials, permit of the conclusion that the pleader purposed to state causes of action for the wilful misconduct of the defendant pertaining to transactions of the bonding committee, and that the county’s financial interests were thereby wilfully sacrificed in the amount alleged. The de [301] murrer challenges the sufficiency of the complaint, upon the ground that the facts alleged do not constitute a cause of action against the defendant. The contentions of the plaintiff in support of the claim that the facts alleged state good causes of action against the defendant are grounded on the idea that the defendant was a member of the bonding committee by acting with such committee, and, for this occasion, he was in fact an officer of the county and liable as such. Counsel conceded that the law providing for the appointment of committees by county boards confers authority to appoint on such committees only members elect of the county board. That such is the authority conferred by see. 668, Stats. (Laws of 1907, ch. 14), is plain. The complaint alleges that the county board by resolution appointed a committee of three, known as the bonding committee, and authorized and empowered such committee to negotiate, sell, and deliver the county bonds for the county board to the-highest and best' bidder therefor; that the county board appointed two of its members and the defendant, who was not a member of such county board, members of said committee; and that' the defendant accepted the appointment and acted with the two members of the board so appointed. The question is: Does this show that he was a county officer while he was acting for the board in carrying out the objects of the resolution? To make him an officer of the county it is necessary that he fill an office. It is claimed that the creation of the committee by the county board was an act within the authority conferred by sec. 668, Stats., and that membership thereof constituted him an officer of the county for the purposes of the authority delegated to them. True, the persons who carried out this bond transaction acted for the county board in a matter the board could delegate to a committee of its members under sec. 652, Stats. (1898). See French v. Dunn Co. 58 Wis. 402, 17 N. W. 1. A properly constituted committee of members of the county board could act only as an agency of the county board to execute and per [302] form a duty of the board. This, however, can only be lawfully done by a committee composed of board members, and no power or authority existed to appoint the defendant a member of such a committee. The result'is that no authority was conferred on the defendant as a member of such a committee; nor was he invested with any power to perform a function of the county board. Since he was not a member of the county board he was wholly outside the field of official action in this transaction. Under the existing law it is only by virtue of membership of the county board that members of a committee thereof' can be considered as acting in an official capacity for the county in conducting its affairs. Under such circumstances, defendant’s participation in the transaction of selling the bonds was that of a volunteer having no official authority. These conditions preclude the inference that a liability of the defendant can be predicated upon the grounds presented by the plaintiff’s counsel, namely, that he was a de fado officer of the county. As we have seen, he held no office, because membership of such a committee refers back to membership in the county board. The question then arises: Do the facts alleged constitute a cause of action against the defendant in his individual capacity ? The facts alleged tend to show that the defendant undertook, without compensation, to aid the county board in negotiating the sale and delivery of the county bonds to the “highest áfiíFbest bidder” therefor; that he acted in conjunction with ttvo members of the board in this transaction for the sale and delivery of the bonds to the appropriate bidder, whose bid for the purchase of the bonds was presented pursuant to letters sent out by the defendant and the members of the board associated with him, inviting parties to submit bids to them for the purchase of the bonds; that he and the two members of the board accepted the bid by which it is alleged the county realized $3,325 less than the amount the county would have realized by accepting the other bid submitted to [303] them; and that the defendant controlled the other members of the alleged committee, fraudulently and corruptly induced them to report to the county hoard that' the accepted bid was the best offer received by them for the purchase of the bonds, and he concealed from the members of the board the fact that it was not the best bid. It is alleged generally that the defendant acted collusively and fraudulently in the matter but that the details of such wrongful conduct are unknown to the plaintiff. “The averments of the pleader stigmatizing them as fraudulent adds nothing to the pleading, nor does it change the essential character of the acts and omissions.” Herbst v. Land & L. Co. 134 Wis. 502, 115 N. W. 119, and cases cited. This court in the case of Nelson v. C., M. & St. P. R. Co. 60 Wis. 320, 19 N. W. 52, declared the rule to be: “Whoever bargains to render services for another, undertakes for good faith and integrity, but he does not agree that he will commit no errors. Eor negligence, bad faith, or dishonesty he would be liable to his employer, but, if he is guilty of neither of these, the master or employer must submit to such incidental losses as may occur in the course of the employment, because these are incident to all avocations, and no one, by any implication of law, ever undertakes to protect another against them.” See, also, Noble v. Libby, 144 Wis. 632, 129 N. W. 791. “A general charge that a party acted fraudulently, falsely, or wrongfully, or that he made fraudulent representations or statements, amounts to nothing; there must be a specification of facts to justify it. It is at most but a mere inferential statement, too vague and uncertain to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it, or to inform the court whose duty it is to declare the law arising upon the facts.” Kewaunee Co. v. Decker, 30 Wis. 624. See, also, Pietsch v. Krause, 112 Wis. 418, 88 N. W. 223; New Bank v. Kleiner, 112 Wis. 287, 87 N. W. 1090; Riley v. Riley, 34 Wis. 372. [304] Applying these rules to the allegations of the complaint, we find that there are no facts alleged to show fraud. The only fact which can be claimed to show that the defendant and his associates did not secure the best results for the county in selling the bonds is that the bid accepted apparently brought a return of $3,325 less than the other bid would have brought'. But the complaint wholly fails to allege any of the conditions incident to the rejected bid, as shown by the exhibits attached to the complaint, which might show that the accepted bid was the better bid, though on its face the money return was apparently less than from the one rejected. Further, there is no fact alleged that impeaches the good faith and honesty of the defendant in believing the bid accepted to be a better bid for the county’s interest than the rejected one. In law every intendment that harmonizes with honesty and fair dealing must be presumed in the light of the alleged facts. The action of the defendant and his associates may be fully explicable on the ground of an honest mistake in judgment, in so far as the alleged facts show, for which no liability for pecuniary loss under such circumstances attaches. AVe are persuaded that the complaint is wanting in fact's showing that the defendant committed a fraud in the alleged transaction of the bond sale. Hence it states no cause of action against the defendant', and the demurrer should have been sustained. By the Court. — The order appealed from is reversed, and the cause remanded with directions to the court to sustain the demurrer to the complaint.