Giblin v. N. Wis. Lumber Co.

• Decision Date: 09 April 1907
• Citation: 131 Wis. 261,111 N.W. 499
• Parties: GIBLIN v. NORTH WISCONSIN LUMBER CO.
• Court: Wisconsin Supreme Court

131 Wis. 261

111 N.W. 499

GIBLIN

v.NORTH WISCONSIN LUMBER CO.

Supreme Court of Wisconsin.

April 9, 1907.

Appeal from Circuit Court, Sawyer County; John K. Parish, Judge.

Action by William Giblin against the North Wisconsin Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The appellant brought this action at law upon contract for the sale of county orders of Sawyer county, aggregating $2,500, and, at the close of the testimony, the trial judge directed a verdict in favor of the defendant, and from the judgment thereon dismissing the complaint, the plaintiff appeals.

The county orders and the contract sued on came into existence as follows: The plaintiff was sheriff of Sawyer county in the years 1901 and 1902, and, in August of the latter year, made and presented to the county board of supervisors of that county a claim for “compensation and expenses incurred in pursuit of Albert Thompson, $975; A. G. Lewis, $890; J. H. Wagner, $875; Peter Wirleck, $725; Peter Olson, $350; traveled to arrest Charles S. Johnson, 4,000 miles, $400; subpœnaing witnesses in Johnson case, $150; traveled to subpœna six witnesses in Johnson case, 1,000 miles, $100; conveying John Helms, charged with selling liquor without license, $500”; some smaller items, more definitely described--the whole aggregating $5,036.60. No dates of performing the alleged services were given, and the claim was not itemized further than shown. In his testimony in this action, plaintiff admitted facts showing that the claim for the most part was false and fraudulent. This claim was certified by the then district attorney, and verified by the plaintiff. The county board of supervisors of Sawyer county consisted of three members, among them a Mr. Peck, chairman of the board, who was strongly opposed to the allowance of the claim. On November 6, 1902, Mr. Peck resigned, and Mr. Robert L. McCormick was elected in his place, and held until the next spring election, when he was defeated for election. McCormick, at the time he held the office of supervisor, and prior to that time, was an officer and general manager of the defendant corporation. The other two members of the county board were James Erickson, a farmer, and Oscar Holstrom, a saloon keeper. After McCormick became a member of the county board, and on or about December 20, 1902, the plaintiff and his attorney had a conversation with McCormick concerning the allowance of this claim at $2,500, and it was substantially agreed outside of the session of the board and between McCormick and the plaintiff that the board would allow the bill at $2,500, and that McCormick would take the county orders to be issued thereon, and use them in the payment of taxes. The plaintiff suggested that if the claim were allowed at $2,500 he would not get that much money because the county orders were at a discount, and that if the bill were allowed somebody might stop it, and McCormick thereupon informed the plaintiff that he would take the orders at their face because he had taxes to pay, and that he did not think anybody would stop the issue of the orders, because $2,500 was a reasonable sum, and if they did he (McCormick) would take care of it and take his chances. The claim was again presented to the county board, and allowed at $2,500 on or about January 5, 1903, McCormick not voting. The county orders in question were issued in payment of said claim, and delivered to an employé of the defendant corporation, and some days thereafter the plaintiff called at the office of the defendant and indorsed the county orders by signing his name on the back, leaving them in the possession of the defendant. The defendant corporation delivered the county orders to the town treasurer, one Skogstad, in payment of part of its taxes then payable to the town treasurer. The plaintiff and McCormick were expecting that some of “their enemies” might bring in injunctions against the payment of these county orders or the allowance of this claim and recognized that haste was necessary or at least desirable. While matters were in this condition A. M. Carpenter and the Chippewa Farm Land Company on or about February 25, 1903, began a taxpayers' suit against Sawyer county, its treasurer, the said three members of its county board, the plaintiff, the defendant and others, for the purpose of enjoining the payment of said county orders or the receipt of the same for taxes, or the recognition of the same in any manner as evidence of indebtedness of Sawyer county. This suit was also directed against other county orders besides those involved in this action. Skogstad, who was a defendant, and who had received the county orders in question in payment of defendant's taxes, served an answer and cross-bill, asking for affirmative relief against the defendant corporation, to the effect that such corporation be required to pay him in money the taxes which they had attempted to discharge by delivery of said county orders. The plaintiff appeared and answered in the taxpayers' suit, and the defendant corporation and the three supervisors defaulted therein. That suit was prosecuted to judgment, whereby “it was ordered, adjudged, and decreed that the following orders issued by the county clerk of Sawyer county on the county treasurer of said county are, and each of them is, wholly illegal and void * * * to wit: * * * county orders issued * * * in favor of the defendant, William Giblin, and numbered 12,085 to 12,091, inclusive.” There was also a perpetual injunction decreed against paying said orders, or any of them, or receiving the same for taxes, or in any manner recognizing the same as evidencing valid indebtedness of said Sawyer county. On the cross-bill of Skogstad the defendant corporation was required to repay to the county the amount of taxes attempted to be paid by the defendant by means of the illegal county orders in question, with interest from January 5, 1903; and it did so.Frank B. Lamoreux and H. B. Walmsley, for appellant.

Wickham & Farr and F. L. McNamara, for respondent.

TIMLIN, J. (after stating the facts).

If we assume as most favorable to the appellant that there was evidence tending to show that the defendant, through McCormick, purchased these county orders from the plaintiff and agreed to pay $2,500 therefor, there still remain many insuperable legal obstacles to the plaintiff's recovery. One is that the county orders so sold, having been adjudged in the taxpayers' suit fraudulent and void, there was a total failure of consideration. 1 Parsons on Contracts (9th Ed.) marg. pp. 462, 463, and cases; Rowe v. Blanchard, 18 Wis. 441, 86 Am. Dec. 783. Another is that, in the sale of such nonnegotiable choses in action, there is an implied warranty that the seller has title, and that the chose is not spurious, false, or counterfeit. Giffert v. West, 33 Wis. 617;Scott v. Hix, 62 Am. Dec. 458, 468, 2 Sneed (Tenn.) 192, and cases in note; Roehl v. Volckmann, 103 Wis. 484, 79 N. W. 755. The decree in the taxpayers' suit having been offered in evidence, it was competent evidence, not only against the parties actually named in said suit, but also against all the taxpayers and citizens in said county. State v. Rainey, 74 Mo. 229;Clark v. Wolf, 29 Iowa, 197;Sauls v. Freeman, 24 Fla. 209, 4 South. 525, 12 Am. St. Rep. 190;Bear v. Com'rs of Brunswick, 122 N. C. 434, 29 S. E. 719, 65 Am. St. Rep. 711;Scotland County v. Hill, 112 U. S. 183, 5 Sup. Ct. 93, 28 L. Ed. 692. Both the plaintiff and defendant in this cause were parties to that taxpayers' suit brought by Carpenter and another to enjoin payment of the county orders in question.

The appellant seeks to avoid the effect of the foregoing by two propositions: First, he contends that, in an action brought by a plaintiff against several defendants, the judgment or decree therein is not conclusive upon two or more of said defendants, in a subsequent controversy between themselves over the same subject-matter; second, that where a judgment or decree is not conclusive, it is not evidence at all. Citing to the first proposition pages 731, 733, 24 Am. & Eng. Encyc. Law (2d Ed.), and cases there referred to. And citing to the second proposition Pioneer Savings, etc., Co. v. Bartsch, 51 Minn. 474, 53 N. W. 764, 38 Am. St. Rep. 511, which declares that: “The rule is familiar that, as against any one except the parties and their privies, a judgment...