La Fayette Cnty. Monument Corp. v. Ryland

• Decision Date: 03 June 1891
• Citation: 80 Wis. 29,49 N.W. 157
• Parties: LA FAYETTE COUNTY MONUMENT CORP. v. RYLAND ET AL.
• Court: Wisconsin Supreme Court

80 Wis. 29

49 N.W. 157

LA FAYETTE COUNTY MONUMENT CORP.

v.RYLAND ET AL.

Supreme Court of Wisconsin.

June 3, 1891.

Appeal from circuit court, Grant county; GEORGE CLEMENTSON, Judge.

The action is upon the undertaking given on the appeal to this court in Monument Corp. v. Magoon, 73 Wis. 627, 42 N. W. Rep. 17. The appeal was taken by Magoon. George W. Ryland and C. H. Baxter, the defendants in this action, are the sureties in such undertaking, which is to the effect that Magoon would pay all costs and damages which might be awarded against him on such appeal, and if the judgment should be affirmed that he would also pay the amount of the judgment appealed from. The judgment was affirmed by this court, and no part thereof has been paid. The original action was brought on a dishonored bank check of Magoon, dated April 6, 1887, received by the monument corporation in payment of $1,000, which, under an agreement between him and the county board of supervisors of La Fayette county, he agreed to pay such corporation (not then organized) towards the cost of erecting a monument to the deceased soldiers and sailors of that county. The basis of such agreement was a communication to the county board, bearing date January 8, 1885, in which Magoon agreed to pay such organization that sum if the county would raise by tax and pay to the organization $2,000 within two years for a like purpose. The county board at once accepted such proposition. A corporation to receive such subscriptions, and to erect the proposed monument, (which corporation is the present plaintiff, and was the plaintiff in the original action,) was duly organized in November, 1885, and Magoon became its president. Within two years after January 8, 1885, the county raised the required amount by tax, paid it over to the corporation, and notified Magoon that it had done so. On April 6, 1887, the corporation and Magoon entered into an agreement in and by which they attempted to impose on the corporation conditions not contained in the agreement between Magoon and the county, which, if not performed, would entitle Magoon to a return of the $1,000, for which he gave the check upon which the original action was brought. This agreement, and Magoon's proposition to the board of supervisors, are fully set out in the report of the case in 73 Wis. 627, and 42 N. W. Rep. 17. The judgment therein against Magoon was affirmed for the reason that when it was rendered there had been no default in the performance of such conditions on the part of the corporation. Whether those conditions were valid and binding was left an open question.

In the present case facts are alleged in the complaint showing a cause of action against the defendants on the undertaking in suit. The defendants interposed a counter-claim to the complaint, alleging certain breaches of the conditions in the agreement of April 6, 1887, and claiming that such breaches invalidate the judgment against Magoon. They also offered to pay the costs in the original action, both in the circuit and this court, and interest thereon, and the costs of the present action to the time their answer was served. The plaintiff filed and served a reply to such counter-claim, substantially admitting some of the breaches alleged, and charging that the plaintiff was prevented from performing the agreement of April 6th by the acts of Magoon therein stated. Defendants interposed a general demurrer to such reply, which was overruled by the court on the grounds stated in the following opinion of the circuit judge: “I am of the opinion that the proposition made by Mr. Magoon to the county that if it would raise by tax $2,000 for the monument fund he would then pay $1,000 into that fund, and the acceptance...