Hart v. Wyndmere

• Decision Date: 07 April 1911
• Parties: HART et al. v. VILLAGE OF WYNDMERE et al.
• Court: North Dakota Supreme Court

21 N.D. 383

131 N.W. 271

HART et al.

v.VILLAGE OF WYNDMERE et al.

Supreme Court of North Dakota.

April 7, 1911.

Syllabus by the Court.

A seller of village warrants for value by their sale impliedly warrants such securities to be the genuine and legal obligations of the village, and that the same are not to the knowledge of the transferror subject to set-off or counterclaim.

The delivery by a village of its legal warrant in payment of a contract, providing for payment by it in cash, is payment of such contract obligation.

Those dealing with a municipal corporation, a village, are presumed to know the extent of its powers, and cannot hold it liable because of representations or contracts of its officers concerning matters not legally within its corporate powers.

An action begun as an equitable action may by subsequent pleadings be changed in nature to one at law properly triable on demand to a jury.

Where summons and complaint were issued and served in an action against a single defendant, and thereafter the parties stipulate in additional defendants by the service of supplemental pleadings naming them as such, and such additional defendants so named voluntarily enter the action, serve answers on codefendants and original plaintiff, and issue is joined thereon between the original plaintiff and all of such defendants and between one another, without an order of court bringing in such additional parties, but thereafter all parties to the action participate in the trial offering their testimony, resting and moving for judgment, any objection thereafter made by such additional parties to the jurisdiction of the court over them or the subject-matter of the action comes too late, and they will be held to have submitted in all things to the jurisdiction of the court the determination of their action and are bound by the verdict rendered and judgment entered thereon.

If such action between the many parties, even though of conflicting interest, is but a combination of two or more separate actions at law, the action is not necessarily changed from one at law to one in equity because of such voluntary consolidation of issues by the parties.

The statutory provision (section 7031 of the North Dakota Revised Codes of 1905) requiring that a verdict must be signed by the foreman of the jury is directory, not mandatory, and an unsigned verdict properly rendered and received that would otherwise be valid is not invalidated by such statutory provision.

Where, at the close of the testimony, as to certain issues in the case, the court might have directed a verdict or findings, any error not affecting the result as to such matters uncontroverted by the evidence, or any issues to be found by the jury, is error without prejudice and not ground for new trial.

Evidence examined, and held sufficient to sustain the verdict rendered and judgment ordered thereon.

Appeal from District Court, Richland County; Allen, Judge.

Action by J. H. Hart and another against the Village of Wyndmere and others, and the North Dakota Artesian Well Company, intervener. From a judgment in favor of plaintiffs as against intervener, and dismissing the suit as against defendants, and also the counterclaim of intervener against the defendants, intervener appeals. Affirmed.C. W. Davis, for appellant. Chas. E. Wolfe, for respondents Hart and Springer. W. S. Lauder, for other respondents.

GOSS, J.

Ths action was begun by the plaintiffs and respondents herein against W. D. Springer, as treasurer of the village of Wyndmere, as sole defendant, in which action a summons and verified complaint dated June 26, 1906, was issued and served upon the defendant therein named. The action was an equitable one asking for injunctional relief against the treasurer paying warrants and claims registered after the two warrants owned by plaintiffs, to the effect that the funds of the village be accumulated to meet the two warrants aggregating $784.50 and interest, belonging to the plaintiffs. Accompanying the summons and complaint was an affidavit reciting substantially the same matters as the complaint, with the same statutory recitals as contained in the complaint as a basis for an injunctional order pending suit. Based upon the summons, complaint, and affidavit was an injunctional order enjoining the treasurer from making payments of claims and warrants registered subsequent to those of the plaintiff. As a result of the injunctional order, the funds of the village of Wyndmere accumulated in its treasury, and nearly a year thereafter, the warrants remaining unpaid, the village having employed counsel in behalf of itself, trustees, and the defendant treasurer, a supplemental complaint was served reciting the reason therefor to be that of an agreement between the counsel for plaintiff and defendants, which supplemental complaint was entitled against W. D. Springer as treasurer of the village of Wyndmere and its trustees, naming them, and the North Dakota Artesian Well Company, a corporation, all named as defendants, and which complaint changed the entire nature of the action from one in equity to one at law. This supplemental complaint recited the ownership of the warrants as in the plaintiffs; that the same had been presented for payment long prior thereto and were wholly unpaid; that funds had accumulated in the treasury of the village of Wyndmere amply sufficient to pay the same in full; that the plaintiffs were informed that the village had a defense to the payment of said warrants and claimed the invalidity of the same. It further alleged that the warrants were indorsed to plaintiffs by the North Dakota Artesian Well Company, defendant; and that the plaintiffs purchased the warrants from said company for a valuable consideration; and that said company at the time of the purchase thereof by plaintiffs guaranteed said warrants were in all things genuine and the enforceable obligations of the village of Wyndmere; and that there existed no set-off, counterclaim, or legal defense against said warrants or either of them on the part of said village. But that said village claimed a set-off or counterclaim against the warrants to the full amount of the same. The supplemental complaint further recited that the defendants village of Wyndmere and its trustees and the North Dakota Artesian Well Company, for the purpose of avoiding further litigation, and to the end that the rights of all the parties might be determined and adjudicated in this action, were willing to be joined as parties defendant to litigate herein their respective rights, and that the plaintiff was willing they should be so joined and so litigate fully the matter on the merits by this one action. And judgment was asked for against the village of Wyndmere and the North Dakota Artesian Well Company for the amount of said warrants with interest thereon; and that the treasurer of the village of Wyndmere be ordered and directed to pay the said judgment from the funds in his hands against which said warrants were drawn.

To this supplemental complaint the defendant village, its treasurer and trustees answered, accepting and admitting service of said supplemental complaint, and in its behalf set forth in detail its defenses to the payment of said warrants. This was substantially to the following effect: That the village of Wyndmere was not indebted to the defendant well company or the plaintiffs in any sum whatever; further, that on December 8, 1905, said well company entered into a written contract with defendant village to dig, drill, sink, and construct for the village an artesian well for the consideration and upon the terms and conditions as set forth in a contract, the portions material to this inquiry being: “This agreement made and entered into this 8th day of November, A. D. 1905, by and between the North Dakota Artesian Well Company, a corporation of the state of North Dakota, located at Oakes, N. D., party of the first part, and the village of Wyndmere, N. D., party of the second part, witnesseth: That the party of the first part agrees and contracts with the said party of the second part, as follows: First. On or about November 18, 1905, to commence work on an artesian well to be located on village property in block 7 in said village of Wyndmere, said land being the property of the party of the second part, and to prosecute the work thereon continuously and without unnecessary delay until said work is finished. Second. To drill said well to a depth necessary to obtain a flow of water sufficiently clear for domestic and stock purposes. Striking quartzite or granite shall be considered proof of sufficient depth to fill this contract. * * * Sixth. For and in consideration for the drilling and casing of said well, said party of the second part agrees to pay the party of the first part the sum of one dollar and fifty cents per foot for entire depth of well, to be paid in cash at completion of well. * * * Eighth. Party of the first part guarantees the well not to choke or clog for a period of one year from date of completion, but only on condition that the well is not used for power purposes and that the flow of water from well is not checked by valves or mechanical contrivances except upon permission of the party of the first part. In case the well should stop before that time, party of the first part will repair same or drill a new well free of expense to the party of the second part. This guaranty, however, is null and void unless the well is settled for according to this contract.”

The village by way of answer also alleged that the said company had failed, neglected, and refused to dig, drill, or construct an artesian well within the terms and conditions set forth within the written contract, in that said company neglected to drill said well to a depth necessary to obtain a flow of water sufficient for domestic and stock purposes, and that said company has never drilled or constructed any well for...