Brust v. First Nat. Bank of Stevens Point

• Decision Date: 06 May 1924
• Citation: 198 N.W. 749,184 Wis. 15
• Parties: BRUST ET AL. v. FIRST NAT. BANK OF STEVENS POINT.
• Court: Wisconsin Supreme Court

184 Wis. 15

198 N.W. 749

BRUST ET AL.

v.FIRST NAT. BANK OF STEVENS POINT.

Supreme Court of Wisconsin.

May 6, 1924.

Appeal from Circuit Court, Portage County; Byron B. Park, Judge.

Action by Peter Brust and another against the First National Bank of Stevens Point. Judgment for defendant, and plaintiffs appeal. Reversed and remanded, with directions to enter judgment for plaintiffs.

This action was brought by plaintiffs against the defendant to recover the value of services rendered by them in their professional capacity as architects. The plaintiffs were employed by the defendant to prepare plans for a new bank building. It was claimed on the part of the defendant that it was understood that the bank building was to cost not more than $85,000, and that the plaintiffs warranted to the bank that the building, the plans for which were furnished by the plaintiffs, could be built for $85,000. The jury so found upon conflicting testimony, and further found that the defendant relied upon said representations. The lowest bid made in response to a public advertisement for bids for the construction of the building in accordance with the plans and specifications was very much in excess of $85,000. Upon the coming in of the bids the bank concluded that it would not go ahead with the building, and asked the plaintiffs to send it a bill for their expenses. The plaintiffs sent a bill for $3,000 to cover, not only their expenses, but their reasonable charges for services rendered. The defendant paid no attention to this bill for over a year, when it reconsidered the matter of building, entered into new negotiations with the plaintiffs, paid them $2,000 on account, arranged for a modification of the plans so as to reduce the expense of the building, and readvertised for bids. The bids received in response to this readvertising were much higher than the bids received in response to the first advertising, and the bank thereupon rejected plaintiffs' plans, and procured other architects.

This action was brought on quantum meruit, and the court submitted this question to the jury, among others:

“If the court should be of the opinion that the plaintiffs are entitled to recover in this action, what sum, if any, is due the plaintiffs for services rendered?”

The jury answered, $800. The plaintiffs moved to change this answer from $800 to $1,842, the same being the amount of the plaintiffs' bill. The defendant moved for judgment in its favor dismissing plaintiffs' complaint, with costs. The motion of the plaintiffs to change the answer as above indicated was denied, and the defendant's motion for judgment dismissing the complaint was granted. The plaintiffs appeal from the judgment so entered.Kaumheimer & Kenney, of Milwaukee, for appellants.

Fisher & Cashin and J. R. Pfiffner, all of Stevens Point, for respondent.

OWEN, J. (after stating the facts as above).

[1] The plaintiffs raise numerous questions concerning the jurisdiction and the proper place of trial of the action, which will first be disposed of. The case was commenced in the civil court of Milwaukee county. The defendant made an application to that court for change of venue to Portage county, claiming that, as the defendant bank was domiciled in the city of Stevens Point, in that county, that was the proper place of trial. This application was denied by the civil court, for the reason that no statutory provision authorizes a change of venue from the civil court of Milwaukee county. The defendant then defaulted, and judgment was rendered in favor of the plaintiffs in said civil court. Thereupon the defendant appealed to the circuit court, where its application for a change of the place of trial was renewed. The circuit court granted the application, and made an order transferring the case to the circuit court for Portage county, where a trial de novo was had, with the result already stated. It seems proper that we first consider whether the civil court of Milwaukee county had any jurisdiction of the case.

Section 5198 of the Revised Statutes of the United States, as amended by chapter 80, approved February 18, 1875 (U. S. Comp. St. § 9759), provides that--

“Suits, actions, and proceedings against any association under this title may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established, or in any state, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

Section 4 of chapter 290, Act of Congress, approved July 12, 1882, entitled “An act to enable national banking associations to extend their corporate existence, and for other purposes,” provides, so far as material here, as follows:

“The jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking association may be doing business when such suits may be begun: And all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed.”

This provision appears in the Compiled Statutes of the United States as section 9668.

It is the contention of the defendant bank that the jurisdiction of state courts to entertain suits against national banks is defined by section 5198 of the Revised Statutes, above quoted, and that, by the terms of that section, only state courts located within the municipality or county in which the national bank is located may entertain jurisdiction of a suit against a national bank. The plaintiffs contend that the act of 1882 is applicable, and that under the provisions of that act any state court which would have jurisdiction of an action against a state bank similarly situated may entertain jurisdiction against a national bank. That the latter contention is correct seems to us quite clear. The act of 1882 is a later enactment than section 5198. It seems to cover the subject of jurisdiction of state courts in actions against national banks, and expressly provides that all laws and parts of laws inconsistent therewith are repealed. It seems to have been the policy of Congress to place state and national banks on an equal footing in this respect. Such was the conclusion of the Michigan court in Levitan v. Houghton National Bank, 174 Mich. 566, 140 N. W. 1019. While we are referred to no case decided by the federal Supreme Court involving the question, we are referred to the cases of First National Bank v. Fellows, 244 U. S. 416, 37 Sup. Ct. 734, 61 L. Ed. 1233, L. R. A. 1918C, 283, Ann. Cas. 1918D, 1169; and First National Bank in St. Louis v. State of Missouri, 44 Sup. Ct. 215, 68 L. Ed. 486, in both of which original jurisdiction was taken by the respective state Supreme Courts, and no question of the jurisdiction seems to have been raised. It is manifest that, if the terms of section 5198 governed the question of the jurisdiction of state courts over actions against national banks, the question of jurisdiction would have arisen, as neither Supreme Court was a court of the county in which the bank was located. As the civil court of Milwaukee county could take jurisdiction of an action against a state bank located in Portage county, it follows very plainly, it seems to us, that it might also acquire jurisdiction of a national bank located in that county. We therefore hold that the civil court of Milwaukee county had jurisdiction.

[2][3][4] The Civil Court Act for Milwaukee county makes no provision for a change of venue from that court to another county, where the defendants are nonresidents of Milwaukee county. Paragraph 3a of section 28 of that act (chapter 261, Laws 1913) provides that, on any appeal from said civil court to the circuit court of Milwaukee county, nonresident defendants may make application for a change of the place of trial in like manner and for like causes as in cases originally brought in the circuit court, and as provided in like cases on appeal from justice court by section 2624 of the statutes, and upon such change of venue the circuit court of the county where the defendant resides shall have jurisdiction of such action, the same as on appeal from justice court, and there shall be a trial de novo in the same cases and under the same provisions of law as in the cases of appeals from justice court. It follows that the civil court had no power to grant defendant's application for a change of the place of trial, but that the circuit court did have the power to do so, if defendant was entitled to a change of the place of trial under the provisions of our statutes relating to that subject. Whether it had such right must be determined by the provisions of section 2619, Stats. Such right on the part of the defendant must be determined by a consideration of the sixth and seventh subdivisions of that section. The first three subdivisions of that section provide for the place of trial of various actions therein enumerated. The fourth subdivision relates to actions against railroads and interurban railroads. The fifth relates to actions against insurance companies. The sixth subdivision is as follows:

“Of an action against any other corporation existing under the law of this state, the county in which it is situated or has its principal office or place of business, or in which the cause of action or some part thereof arose.”

And the seventh subdivision provides:

“Of any other action, the county in which any defendant resides at the commencement of the action; or if neither defendant resides within this state, any county which the plaintiff designates in his complaint.”

If a national bank can be...