Appleton Waterworks Co. v. City of Appleton

• Decision Date: 29 September 1908
• Citation: 136 Wis. 395,117 N.W. 816
• Parties: APPLETON WATERWORKS CO. v. CITY OF APPLETON.
• Court: Wisconsin Supreme Court

136 Wis. 395

117 N.W. 816

APPLETON WATERWORKS CO.

v.CITY OF APPLETON.

Supreme Court of Wisconsin.

Sept. 29, 1908.

Appeal from Circuit Court, Wood County; Charles M. Webb, Judge.

Action by the Appleton Waterworks Company against the city of Appleton. Judgment for plaintiff, and defendant appeals. Reversed.

This case was before this court on a former appeal and is reported in 132 Wis. 563, 113 N. W. 44. Reference is made to that case for a statement of the facts material to be considered upon this appeal.

After the record was remanded to the trial court, judgment was rendered in that court in favor of the plaintiff and against the defendant for $3,904.27 damages and $396.33 costs, making an aggregate of $4,300.60. The judgment for damages included interest to the amount of $693.02, interest having been computed on the balance due under the terms of the contract from the time it became due until the date of the rendition of the judgment. The allowance of such interest is the error upon which defendant relies for a reversal of the judgment.Henry D. Ryan, City Atty., and B. H. Stebbins (Greene, Fairchild, North & Parker, of counsel), for appellant.

Quarles, Spence & Quarles (George Lines, of counsel), for respondent.

BARNES, 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. Trust 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 construe the decision or 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 interest. The consolidated claims were not founded on express contract, but were based on an implied obligation to pay what the services were reasonably worth. Nothing was due on the express contract until August 1, 1904, yet claims aggregating $6,000 were filed before that time. Nothing was due on account of the services rendered for August, September, and October, 1904, until February 1, 1905, yet long prior to that time appeals had been taken from the action of the common council of the city of Appleton on bills rendered for those months, and the causes had been noticed for trial. This court permitted a recovery on an express contract where suit was brought on an implied one, not because the plaintiff was strictly entitled to such judgment on the issues raised, but because the indebtedness on the express contract was admitted, and no good reason was apparent why the litigation should not be brought to a close. The time of payment for the service rendered, as well as the amount of it, was definitely fixed by the contract. If private individuals were involved, no demand for payment would have been necessary to start the running of interest. With municipal corporations the rule is different, in some jurisdictions at least, and a demand of payment is held necessary to create a default on the part of such corporations so as to set interest running. The principle upon which this distinction rests is that the law does not contemplate that a public officer shall leave his office and search out the creditor and tender him in currency or otherwise the amount of his bill. The number of bills paid by a city in the course of a year is large, and, if the treasurer were obliged to search out each claimant and pay him what was due him, an onerous...